[Recorded by Electronic Apparatus]
Tuesday, November 19, 1996
.1533 
[English]
The Chairman: Order, please. I'd like to reconvene the subcommittee on the hearing of Bill C-25.
We have two witnesses this afternoon. Our first witness is Mr. Philip Anisman, barrister and solicitor. I invite Mr. Anisman to make a submission. Perhaps at the opening he could tell us something about himself. Following the submission, we'll invite members of the committee to ask questions.
We have two witnesses this afternoon and one tomorrow afternoon. Before we start withMr. Anisman, I believe there is a vote tomorrow at 3:45 p.m., so we probably won't be starting the committee until 4 p.m. I won't be here; I have to go to my riding, but Mr. John Maloney has consented to act as chairman for tomorrow's meeting.
We'll now go to Mr. Anisman.
Mr. Philip Anisman (Individual Presentation): Thank you, Mr. Chairman. Thank you for the invitation and opportunity to appear before this subcommittee on Bill C-25.
I've brought with me a written submission and I've given copies to the clerk. I should inform you that I've also provided copies to the Minister of Justice and officials of his department.
You've asked me to say a few things about myself. I usually prefer not to talk about myself. There is a curriculum vitae appended to my submission in tab A. I'll be brief and try to explain why I'm here to make submissions on Bill C-25.
I've been interested in the administrative and regulatory process basically since law school. I worked on administrative law in graduate school, or aspects of administrative law, and I taught administrative law at the University of Western Ontario and constitutional law at Osgoode Hall Law School. In the course of my practice, which focuses primarily on the Ontario Securities Commission, I've dealt with administrative law issues. In my curriculum vitae, you'll see that I've made submissions on administrative law to other committees of the Government of Canada through the years and have written on administrative law.
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One of my major concerns throughout my career in teaching, in government and in practice has been the issue relating to the making of rules or regulations. I've long believed that the most effective way of making regulations is through a process permitting public participation by affected parties by means of publishing advance copies of proposed regulations and giving people an opportunity to comment. I'm here today to address that issue and only that issue with respect to Bill C-25.
What prompted me to come here today is the fact that Bill C-25, in its statement of purpose, focuses on accountability, on consultation and on processes for consultation, but apart from one provision that authorizes the cabinet - the Governor in Council - to make regulations with respect to electronic systems to further consultation with respect to proposed regulations, the bill itself doesn't deal with the question of public participation in terms of the regulatory process.
I think that's particularly important in Canada today in view of the role that regulations have come to play in modern government. It's well known now that certainly in technical areas and in other areas as well Parliament can't legislate the details. Parliament adopts broad policy goals and states them in its legislation in the statutes and generally and very commonly leaves the details for the implementation of that policy and the making of regulations to public officials and to regulatory agencies.
In the mid-1970s when I prepared a catalogue of discretionary powers in the Revised Statutes of Canada for the Law Reform Commission of Canada, I found that there were approximately 3,500 different empowering provisions in the Revised Statutes of Canada authorizing the making of regulations, and that was only the tip of the iceberg, because they conferred broad power.
In this context, as I said, I think public participation in the regulatory process is essential. It's essential for three reasons. Here I'm summarizing what is in my written submission. I'll try to be a bit briefer than I'd be if I were reading it.
The first benefit of a process of public participation is basic fairness. The opportunity of affected persons to make representations with respect to proposed regulations is an element of basic fairness. It provides a hearing with respect to the regulatory process analogous to the kind of hearing that citizens have when Parliament legislates, the kind of process that permits people like me to appear before this subcommittee.
In addition, the openness that is essential for a public participatory process permits citizens to draw to the attention of political representatives, of their members of Parliament in this case, issues of significance that are raised in proposed regulations, and thus enhances the potential for political accountability.
Finally, an open and fair process in terms of the benefit of basic fairness will serve the purpose of increasing the confidence of members of the public in the integrity of the system and the acceptability of the regulations that are actually made. That's the first benefit.
The second benefit of public participation is that it tends to result in better regulations. It permits review of proposed regulations by affected persons or people likely to be affected, who can apply their own vision to the regulations, bring their own experience and knowledge to bear on them, and draw additional information, facts and evidence to the attention of public officials responsible for the making of the regulation. As well, they can bring to them the perspective of people who are likely to be affected by the regulation.
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They can identify gaps and misconceptions in the proposed regulation, and they can suggest ways of achieving the regulatory goals that are less costly and more effective than those embodied in a proposed regulation. The result is likely to be - and I would suggest that it has been the result where this process is followed - a better product, which may minimize dislocation and costs for the regulated sector, and at the same time will again enhance the acceptability of the regulations that are adopted.
Finally, the third benefit of a public participatory process is that the processes I've described, the basic fairness and the opportunity to comment, as well as the openness that accompanies a public process, can serve as a check against the potential for error and excess in governmental regulatory processes. In short, openness of the process itself will encourage a responsiveness on the part of public officials that can only serve to better the whole process.
Now, when I say this, I think I'm basically voicing issues of motherhood. These issues have been widely accepted throughout North America. In the United States, federal and state legislation generally require pre-publication of proposed regulations, with an explanation of their purpose and an opportunity for people who are likely to be affected to comment on them. The Americans call this process a notice and comment procedure.
The notice and comment procedure isn't foreign to Canada. It's been accepted in Quebec. The Quebec Regulations Act embodies the notice and comment procedure for all regulations in Quebec. Recently in Ontario the Ontario Securities Act was amended to require the Ontario Securities Commission to follow a notice and comment procedure when it adopts rules or makes policy. And finally, there are isolated incidents of federal statutes that themselves impose a notice and comment procedure with respect to the making of regulations. One example, the one that I'm closest to, is the Canada Business Corporations Act.
But in addition, the Government of Canada itself has generally accepted the merits of the submissions that I'm making to you. The Government of Canada has adopted a regulatory policy, the most recently revised version of which was published in 1995. For the making of regulations, it requires - generally at least - prior consultation, early notice, pre-publication of proposed regulations and consideration by regulatory authorities of comments received.
You might ask, given this policy, why I am here. The reason I am here is that it is only a policy. In my view, public participation in the regulatory process is such a sufficiently fundamental and basic part of that process that it should be a right of every citizen of Canada.
My submission recommends, therefore, that Bill C-25 be amended to include a notice and comment procedure as part of the regulatory process in the bill. To be honest, the kind of amendment I contemplate isn't very difficult. It would require only two changes of any significance and a few consequential changes, and in my submission I have prepared possible draft provisions that could be inserted into the bill to accomplish this.
The first major one, if I may call it that, is a proposed new clause 7.1, which would follow the provision requiring review by the Minister of Justice, and you can find that draft provision at pages 7 to 9 of my submission. It embodies a notice and comment procedure, and I'll come back to that and explain to you briefly what it does.
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The second matter that I think is of some significance in my submissions is a requirement that when regulations are adopted, after the notice and comment process has been pursued, the regulations themselves be accompanied by a brief explanation of their purpose and substance and a brief response to the major submissions made during the comment period.
What I'm suggesting is that when regulations are adopted there be a brief set of reasons given, explaining why the regulation was adopted in the form it was adopted. This approach would not only demonstrate the responsiveness of the process to affected parties. More importantly, it would have the additional benefit of informing affected parties of the purpose of the regulation. It would increase their understanding of the regulation and thus also have a beneficial impact on their ability and willingness to comply with the regulations. In effect, it would benefit the process throughout.
Reasons could be given by quite simply including them with the regulation when it is published in the Canada Gazette after it is registered. My submission includes minor amendments to clause 10 of the bill. You can find them at pages 15 and 16 of my submission. They would incorporate into clause 10 a requirement to include a statement of basis and purpose plus a brief response to the major submissions made during the comment period.
There are a few other consequential amendments that would be required. The are in the submission. I don't think they're important enough to discuss before the committee unless you come back to me with questions.
What I would like to do, and I think it may be of some help to the committee, is to briefly summarize the notice and comment process I've attempted to embody in the new clause I've numbered 7.1 in my submission. This clause attempts to codify, as a minimum procedure for the making of regulations, the current practice followed by the Government of Canada under the government's regulatory policy and the procedures specified in draft form by the Treasury Board Secretariat.
Basically what it requires is this. It first requires pre-publication of proposed regulations in the Canada Gazette, accompanied by a notice. The notice would contain a number of things. It would contain a brief statement of the substance and purpose of the proposed regulation, a reference to the authorizing legislation, a summary of the alternatives considered by the regulatory authority and the reasons for not adopting alternatives not adopted. It would also contain a summary of prior consultations conducted by the regulatory authority before the proposed regulation is published.
This would give people who want to comment an opportunity to address issues presented to the regulatory authority by others and help address the thoughts that formed the proposed regulation. It would require a reference to any unpublished study or report that influenced the proposed regulation, a description of the anticipated costs and benefits of the proposed regulation, and a statement of how, when, and where to make submissions on it.
This may sound like a long list. What it does is merely embody the kinds of processes now required for federal government regulations. The comment period would be 60 days and all comments received would be open to the public under the proposed draft I've presented.
The purpose of making comments open to the public is to enable potentially affected parties to respond to representations made to the regulatory authority by others. So what one would have would be a real participatory process where members of the public could know they have an opportunity to have their view fully heard.
The 60-day period is somewhat longer than the minimum period in the Treasury Board procedures. It is 30 days. The reason for the 60-day period is to permit this process to be conducted fully. What I've done by adopting 60 days is follow the period in other regulatory requirements in federal legislation. For example, the Canada Business Corporations Act has a 60-day period and the federal regulatory policy requires at least 60 days for certain types of proposed regulations.
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The 60 days would give affected parties a slightly longer time. This would enable them to provide more thoughtful and fully formulated responses to what may be complicated regulations. It would also facilitate their ability to respond to the submissions of others.
The proposed provision in my submission is not absolute. It wouldn't require every regulation to go through this process, because it isn't necessary for every regulation. There is a subclause containing exemptions. The exemptions basically replicate experience elsewhere and the exemptions contained in the Treasury Board procedures to implement federal policy.
In effect, the notice and comment procedure need not be followed where people wouldn't be affected, where there would be no change made to an existing regulation - there are examples in the federal procedures - where the regulations would affect internal governmental matters only, or where the regulations would grant an exemption, relieve a restriction or confer a benefit. If people are benefiting, they don't really need a major opportunity to comment.
There is one exception to both of these exemptions in my provision. Even an internal rule and even a rule relieving a restriction or granting an exemption would have to go through the notice and comment procedure if it were likely to have a substantial impact on citizens of Canada. This is because in those circumstances people should be entitled to have a say. What I'm thinking of when I say this is something like granting an exemption that, while benefiting the persons who receive the exemption, might deprive other citizens of protection the legislation was intended to give them. In those circumstances they should have an opportunity to comment.
There are two other exemptions in my provision. Only one of them need be mentioned. It would give the Governor in Council a power to determine not to follow the notice and comment procedure with respect to regulations where it is impracticable or simply unnecessary to do so. What I was thinking of when I put this in was the possibility of emergency rules, where there is an urgent situation that simply has to be addressed. I was also thinking of a situation where there are ongoing types of regulations amended with regularity in an insignificant manner, where it is just unnecessary. The provision provides for this.
Finally, there is one other subclause. In my clause 7.1, at page 9, it simply would authorize any citizen of Canada to petition a regulatory authority to make, amend or repeal a regulation. This power exists now, but putting it into the legislation would ensure that requests like this are taken seriously. It would enhance the kind of responsiveness by the bureaucracy of Canada that the Government of Canada has attempted to encourage in its regulatory policy. At the same time, I'd submit, it would enhance confidence in the regulatory process. It would enable citizens of Canada to know their government is responsive to their concerns.
I might point out this this kind of provision does exist in U.S. state legislation, which frequently requires that a response be given within a specified time. I didn't put this in.
As I said, I won't go through all the detail in my submission. This basically concludes it. Suffice it to say that in my submission a statutory notice and comment procedure in Bill C-25 as part of the regulatory process would have the effect of providing to Canadian citizens a procedural bill of rights with respect to the making of regulations. This would thus further the goals of the bill by assuring a fair and effective regulatory process to all Canadians.
Those are my submissions, Mr. Chairman. Thank you.
The Chairman: Thank you very much, sir.
I will now begin the questioning with Monsieur Lebel.
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[Translation]
Mr. Lebel (Chambly): Thank you, Mr. Anisman, for your presentation. I do not know whether you happened to consult with some of this morning's presenters. We have heard from some serious presenters, including members of the Quebec Bar Association, professor Daniel Mockle of the University of Quebec at Montreal and professor Jamie Benidickson of the University of Ottawa. They all pretty much said the same thing you told us on this point.
I am beginning to feel that there is something wrong with the proposal. I tell myself that it cannot be, that they must have got together on this, that it is impossible. For the last 15 days, we have heard presentations on the bill and then, today, all of a sudden, people are suggesting public hearings such as those which are currently being held in Quebec.
The MPs gathered around this table are tasked with examining whatever difference there might be between what is desirable and the purpose of the bill in arbitrarily exempting certain regulations from the regulatory process. You have no doubt perused clauses 5, 6, 7 of the bill. Do you not think that these provisions are clearly incompatible with your proposal?
[English]
Mr. Anisman: I have two responses to your question, if I may answer in the only language I fully understand.
First, I'm delighted to hear that you received similar representations this morning. I was completely unaware of it. I've consulted with no one in preparing this submission.
The need for public participation in the regulatory process is a belief I've had since I first saw it in action in the United States when I was in graduate school some thirty years ago. I've seen it work in Canada where it's been adopted. It works far better when there is an opportunity for participation than when regulation and regulatory instruments are simply plopped on people. In fact, I think that's generally accepted in Canada in the federal regulatory process that exists now.
My point is that I believe it should be a matter of right, so it belongs in the legislation. With respect to an inconsistency, if you will - if I understood your question correctly - between the provisions in clauses 5 through 10, the regulatory process in the bill, and what I'm proposing, I don't see any inconsistency.
I think a notice and comment procedure would complement the process. In fact, I think the bill is drafted - at least, as an outsider I read it this way - in a manner that isn't intended to interfere with the government's regulatory policy now. So it would seem to me -
[Translation]
Mr. Lebel: I am trying to understand you. Let me say in passing that I totally approve your underlying philosophy and that of the witnesses who came before you. But people are coming to us now and suggesting consultations: both private and public consultations in the course of making regulations. On the other hand, section 5(1) of the bill goes in a completely opposite direction by stating that:
5. (1) The Governor in Council may, by regulation, exempt regulations from the application of the regulatory process.
Our committee is going to have to make a choice. Should we insert in this legislation a proposal such as the one you have made? Should we amend clause 7 and, at the same time, keep clause 1 in its present form? Clause 5(1) states that the Governor in Council may exempt regulations from the application of the regulatory process when he deems its advisable. The regulatory process that you suggest in your own clause 7.1 would be the one that would apply.
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The same bill comes out both for and against this type of provision and that is what I have trouble understanding.
[English]
Mr. Anisman: I must say that I had thought about clause 5 before I came here, and I thought about the power of the Governor in Council in that clause to exempt regulations from the regulatory process. I debated addressing it. I don't think I have to address clause 5 for my submission.
My proposed clause, the notice and comment procedure, would be a part of the regulatory process just as review by the Minister of Justice or the Deputy Minister of Justice is a part of the regulatory process.
If my new clause 7.1 were adopted, clause 5 would involve a regulation, it would give the Governor in Council power to exempt. The clause I propose gives the Governor in Council power to exempt where the Governor in Council believes it necessary to do so. But a regulation adopted under clause 5 would, in my view, have to go through notice and comment, would have to be justified and would be part of a public process that would give the public more confidence in the manner in which the government exercises its power.
I concluded that there wasn't an inconsistency. And, indeed, I concluded that on a couple of bases. One of the bases is subclause 5(4), which provides that when the Governor in Council exercises the power in subclause 5(1), the Governor in Council has to respect the principles embodied in the bill. I think that addresses it.
One could make arguments about whether the Governor in Council should be able to exempt at all. I concluded that it is an element that is part of the political process in this country, and one couldn't successfully deprive the cabinet of it. But I do think it's a power that should be exercised in a manner that follows a proper legitimate process as prescribed by the act. I think that the bill attempts to achieve that through subclause 5(4).
There was one other point you made that I would like to address. You talked about consultation being private. In my view, and I say this in the submission, what I'm advocating is a public process. I think this bill contemplates a public process, and I looked with comfort at paragraph 26(b), which would authorize the Governor in Council to establish an electronic system for public consultation on proposed regulations. It seemed to me that was there to encourage the kind of public process that now exists at the federal level in this country and that I think should be a matter of right for citizens.
In fact, I think that private consultation, if not exposed to public view in the manner I've suggested in my proposed clause 7.1, for example, undermines confidence in the regulatory process because it leads citizens to think that those who are close to the government or its officials have influence when others don't.
To come back to your basic question, it seems to me that my proposed clause 7.1, the notice and comment process that I've drafted, is consistent with what I take to be some of the underpinnings of this bill and certainly with its goals. I submit to you that it would further those underpinnings and further the good workings of the federal regulatory process by giving citizens a right to be heard.
I don't know if that fully answers your question.
[Translation]
Mr. Lebel: Yes, but I then have to ask you another question. The point you make is a good one. How do you reconcile a public consultation process and the integrity of the regulatory process with the provisions of the bill suspending the publication requirements for certain regulations?
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In some cases, we would not even know that a regulation has been made. My mind is already taking in the amendment you suggest for clause 7.1. I am telling myself that the Governor in Council can at any time direct that a regulation be published neither in the Canada Gazette, nor elsewhere. That issue has been thoroughly discussed here.
And so, once again, you can live with all that, including with your suggested clause 7.1?
[English]
Mr. Anisman: I won't attempt to defend paragraph 26(g), which I believe is the paragraph you're referring to, which authorizes the Governor in Council to exempt. I looked at it and I have to confess I had some misgivings about it. I took it to be government policy, and I haven't been involved in enough federal-provincial negotiation, in enough negotiation concerning international affairs or in questions of national security, to be in a position to address the circumstances in which the government might contemplate using that paragraph.
When I was involved in federal-provincial negotiations as a public servant, which was to a very limited degree some years ago, our discussions were generally quite open. But I would have thought, as a matter of principle, that all regulations should be public and available to the public.
I can't defend paragraph 26(g). I don't think I'm the person to deal with it, in fairness. The only thing I would point out, having read the bill, is that a person who violates one of those regulations can't be prosecuted. I don't know whether that saves it, but that's the only thing I would point out.
[Translation]
Mr. Lebel: You refer me to subparagraph 26(g) that I had in mind, but clause 10 also seems to contain an exemption. By sui generis interpretation, clause 11 permits that all kinds of other regulations or of very specific applications be exempted from the publication requirement.
Paragraph 10(4) states that:
(4) No regulation is invalid because it was not published in accordance with this section.
The provision itself admits as much. That paragraph simply means, then, that a regulation has been made but not published.
I understand the need for subparagraph 26(g) in cases where national security or harmony between the federal government and the provinces of Canada might require it, but where is the rationale for paragraph 10(4) within the framework of a process that is intended to be transparent and open to consultation?
[English]
Mr. Anisman: You're asking me questions that might more appropriately be directed to the people who drafted this bill. As an outsider, I can only read it and guess.
[Translation]
Mr. Lebel: We asked them that very question, but they never gave us an answer.
[English]
Mr. Anisman: My guess would be that subclause 10(4) was addressed to deal with errors. It wasn't intended to deal with regulations where there was a conscious intention to avoid the requirements of the act. It was meant merely to deal with the circumstance where regulations that were required to be published were not published.
That's my guess, but perhaps others can answer that question better than I can.
[Translation]
Mr. Lebel: Thank you, you are most kind.
The Chairman: Thank you, Mr. Lebel.
[English]
Mr. Maloney.
Mr. Maloney (Erie): Your proposed clause 7.1 calls for written comments on the regulations for a period of 60 days. We've also heard from some people suggesting there should be public hearings, in addition. What is your comment on that? Do you think it's necessary? Do you think it's advisable? Do you think it's recommended, and in what cases?
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Mr. Anisman: I've drafted three sets of this type of legislation. One was in the proposals for a securities market law for Canada. The second was draft legislation that I included in a submission to the Ontario Task Force on Securities Regulation two years ago, which is contained in an article I published, and this is the third.
My answer to your question is quite simple. The other provisions I've drafted were aimed at regulatory agencies. In them I included a section that authorized the agency to hold public hearings or trial-type hearings if they wished, where they could take oral evidence and have cross-examination, if the agency thought it necessary.
There may be cases when issues of fact are sufficiently in dispute that a government authority may want to find a mechanism to have them heard, in which case it might be appropriate to hold some form of evidentiary hearing.
There may be cases where the nature of the regulations being made are of such broad public concern that some kind of formal hearing process, where people would have an opportunity to make oral presentations, would be warranted. I don't think that kind of requirement is necessary for all regulations or should be made mandatory as part of a minimum notice and comment procedure.
I do believe the regulatory authorities made responsible for making the regulations should have the authority to convene hearings of that nature when they think it appropriate. But I have to say that when I think about that, my model is usually a regulatory agency, like the Ontario Securities Commission, which has done just that on occasion, or the CRTC, which has done just that on occasion, and not necessarily a department. I wouldn't want to impose that kind of obligation on a department and I wouldn't want to impose it on an agency, in fact.
I don't know if that answers what you asked.
Mr. Maloney: It did, thank you.
Thank you, Mr. Chairman.
The Chairman: Mr. Kirkby.
Mr. Kirkby (Prince Albert - Churchill River): With respect to your proposals for notice and comment, when certain regulations are put out it's probably at the government's peril that it would not go out and deal with various stakeholders just to provide the different perspectives. Also, these regulations can get extremely technical, which just goes far beyond the time, resources and knowledge of legislators, or even bureaucracy, to adequately deal with them. So doesn't that sort of necessity ensure that we're going to be going out there anyway and dealing face to face with people who are interested in these regulations?
In addition to that, are there not cases where, in certain instances, the regulations may be of such public interest that you may want to go a long way in public hearings, as you're saying, across the country, do cross-examination and the whole nine yards in certain specific instances? In some cases you may only want to deal with an informal consultation approach, and in certain instances maybe even that consultation approach may be too much, considering the nature of the regulations. Don't you want to allow for a situation where people will have complete flexibility to judge which process is appropriate in a given case?
Mr. Anisman: It's a difficult question to answer in one word. My answer is no, but I'd like to explain it.
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You asked me two questions, and they are both aspects of the same issue. The first question, in effect, is: the government is likely to go out and consult anyway, so do we really need to have a statute saying it?
I thought about that, because when I was responding to the invitation to appear before this committee I was aware that there is a federal regulatory policy that in most cases requires, in fact, consultation. I thought about whether it was worth coming to Ottawa to tell you to put it into the statute.
I concluded that it is. I believe it is, because in my view public participation is more important than just a question of leaving it to the government. Public participation is a matter that is of sufficient significance, in my belief, to citizens of this country that they should have the right to public participation. That's why I talked about it as a bill of rights, a procedural bill of rights with respect to the regulatory process.
When the federal government adopted the bill of rights, it wasn't that Canada was an unjust country where we didn't provide hearings to people who were affected by judicial proceedings. There was the common law. But the government concluded that the issues were sufficiently basic and sufficiently important that a bill of rights was necessary. Subsequently, similar rights were put into the Constitution, in the Canadian Charter of Rights and Freedoms.
In my submission, quite simply, the right to participate in the making of regulations, given the dramatic and pervasive effect that regulations have on the lives of everyday Canadians, is sufficiently basic that it belongs in the statute, plain and simple. In fact, the fact that the government does it - and the provision I've drafted is based on government practice - suggests to me that it isn't going to cause any harm to put it in.
That goes to your second point, which is one about flexibility. I don't think there should be absolute flexibility in the sense that the government can determine whenever it feels like it whether or not to go through a notice and comment process. I think there should be flexibility, but I think the flexibility should be confined within legitimate bounds.
I'd suggest that my proposed subclause 7.1(4) provides adequate flexibility to the government to utilize the regulatory process in a way that doesn't require it to go through unnecessary notice and comment procedures.
The Chairman: Are there other questions?
[Translation]
Mr. Lebel: No, that is fine. Thank you.
[English]
The Chairman: Thank you very much, Mr. Anisman. It has been very good of you to come. I'm glad that when you questioned yourself the decision to come to Ottawa won. It has been very interesting. We thank you very much for your brief as well, which we'll read and hopefully everyone will reflect upon.
Thank you very much again, and have a safe trip back to Toronto.
Mr. Anisman: Thank you, Mr. Chairman. I have one other document that if you think might be helpful, I'd be happy to provide to you.
The Chairman: Yes, if you would.
Mr. Anisman: The legislation I drafted is in the submission, and it's all in boldface. I put together another version of it that only boldfaces the parts that would be additional to the bill, that are not now in the bill. If you think it would be helpful to have that, I'd be pleased to provide copies to the clerk of the committee.
The Chairman: If you would, we'd appreciate it.
Mr. Anisman: Thank you for the opportunity to appear.
The Chairman: It was a pleasure, sir. Thank you.
We'll now take a five-minute recess before we begin with our next witnesses.
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The Chairman: I'd like to resume the hearings of the subcommittee into Bill C-25. We're fortunate this afternoon to have two learned colleagues with us, who need really no introduction but are very well versed in this subject. I look forward, as all committee members do, to their presentations this afternoon. I'm referring to Derek Lee, MP, and Tom Wappel, MP.
Gentlemen, thank you very much for taking the time to appear before this committee this afternoon. We know you've been working on this subject matter as well, and frankly, we look forward to benefiting from the information you've obtained. So I would ask you both to make a presentation, as long as you'd like, following which, as you know, we will be available to ask questions, hopefully.
So without further delay, Mr. Lee, will you be beginning?
Mr. Derek Lee, MP (Scarborough - Rouge River): Thank you, Mr. Chairman. Mr. Wappel and I will probably share the microphone so that no one falls asleep, and we think we'll be about 15 or 20 minutes by the time we've exhausted our efforts here.
The first thing I'd like to do is, for the record, indicate our background here. Mr. Wappel and I have both served as chairs of the Standing Joint Committee for Scrutiny of Regulations. The current joint chair of the SJC, as I'll refer to it - it's simpler - is sitting here on this committee. This particular sequence of chairs would take us back to 1988-89.
Our purpose here is to alert members of this subcommittee to concerns Mr. Wappel and I have noted in relation to Bill C-25. We are appearing here as individual MPs. We are not appearing now on behalf of or for the SJC. As you are aware, the SJC is also currently studying this bill because of its stated real and other impacts on the way Parliament scrutinizes the regulatory field.
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As you are aware, this particular bill was substantially the same in the last session of this Parliament, under the name Bill C-84, and as I think you're aware, in that session it was agreed, at least on the government side, that Bill C-84 would be referred after first reading to a subcommittee of the government operations committee to be populated by members of the SJC, with the exception of the chair, who was Ian Murray. For reasons I am not privy to, that agreement was not followed in this particular session, and the bill was introduced, voted at second reading, and referred to this committee, as you all know.
I now want to get into the substantive issues. I suppose there aren't a lot of them. They're few in number, but we believe they are of significance. I'll now ask Mr. Wappel to embark.
Mr. Tom Wappel, MP (Scarborough West): Thank you, Mr. Lee, and thank you,Mr. Chairman.
I would make a couple of points on the history that Mr. Lee was pointing out. We would ask the committee, for what it's worth, to take note of the fact that there's a marked departure in the way this bill was brought forward in the sense that it is before you after second reading whereas, for all intents and purposes, the previous bill was the same bill and yet it was brought to the other subcommittee prior to second reading.
The importance of this, of course, is that in the previous life of that bill there would have been much more opportunity to amend the bill substantively, because it was sent to committee prior to second reading. That was one of the Liberal government's stated objectives in reforming the way the House of Commons works - to give committees more power to change bills.
It is passing strange that all of a sudden that in fact was completely reversed and the same bill then not only was not referred prior to second reading but was not even referred to the government operations but to the justice committee. We simply ask you to note and reflect on that, because there obviously had to be some reason for doing that.
It was also agreed that there would be government members on the previous committee who were also members of the scrutiny of regulations committee, and that in fact occurred. As you can see by looking around, there are no government members of this committee who sit on the scrutiny of regulations committee, and one has to ask why that is.
I want to start out, from my perspective, as we begin, with what I would call a simplified analogy - and I'm sure that because you've heard the witnesses much of this is going to be repetitive, so I'll try to keep it short - on the importance of the regulatory process and why we feel it's important enough for us to come here and give you our views.
If we view the statute and the regulations as a human body, I would suggest, generally speaking - of course, not always - the statute would be the skeleton and the regulations would be the flesh, the muscle and the sinews. That means it is through regulations and the regulatory process that most Canadians are affected by the laws we pass. We heard the previous witness here say just how all-encompassing the regulations were in terms of the lives of Canadians, and he was arguing that there be a public opportunity to input on this for that very reason. And of course, I couldn't agree more.
To give you a few examples, virtually every form that any Canadian has to fill out insofar as it pertains to the federal government is mandated through some regulation or another, and we only have to think about applications for social insurance numbers, unemployment insurance benefits, Canada Pension Plan benefits, old age security benefits, all of these things, and that's just the tip of the iceberg, of course.
Think about the processing of food. Machinery has to be cleaned. There are regulations to deal with how to clean machines, what machines need to be cleaned, the frequency of cleaning. There are regulations governing anything to do with food processing and weights and measures - how food is measured, how anything is measured. Likewise for packaging and labelling - what has to be on a package, what kind of bilingual packaging there must be - all of this is dealt with by regulation.
What about environmental assessments? What about exempting certain things from environmental assessments? These are all very important and are all dealt with by regulation. And what about the processing of new health care products? For example, here I think specifically of new drugs coming onto the market. All of this is dealt with by the regulatory process.
Never mind about the legislation that is supposedly coming down. In today's newspaper, we see that the tobacco industry is frightened that most of what's going to impact upon them is going to be dealt with by regulation. Why? Because they're afraid that it will therefore not be subject to full parliamentary scrutiny. This is very important.
Just listening to the debates this afternoon on the fisheries bill, one of the complaints is that there are going to be sweeping powers given to the minister in terms of granting permits. Pursuant to what? Pursuant to regulations. The livelihood of people is going to be affected by regulations.
The Standing Joint Committee on the Scrutiny of Regulations deals with over 1,200 regulations each year, each of them affecting the lives of Canadians in one way or another. They deal with subject matters ranging from the most minute to the most far-reaching.
We have examined regulations pertaining to reindeer, if you recall. That's not going to affect too many Canadians. But on the other hand, we've also examined regulations exempting huge projects from normal environmental review processes.
So we feel that while this may not be a high-profile bill like a gun control bill or something of that nature, the fact that we're dealing with regulations makes it profoundly important in and of itself for the people of Canada, because each and every one of us is going to be affected - and has been affected - by the regulatory process in one way or another. So any tinkering that is done with the regulatory process will affect Canadians sooner or later.
I'll turn it over to Mr. Lee to talk about... We're really going to talk about four things only. There are many things that one could talk about in this bill. We're basically going to concentrate on four items that we would bring to your attention and ask you to reflect upon in your deliberations.
Mr. Lee: Thank you.
The first thing I'd like to address is the principle of publication. I know you will have had submissions on this. In the past, publication has been the structure through which Canadians have become aware of the law that's been passed, the delegated legislation that's been passed. This bill proposes to alter the quantity of what is published. This bill does many other things, of course, but I just want to focus on the publication element.
The current legislation contains the ability of the government to exempt from publication on a case-by-case basis, on a case-specific basis. These are common-sense exemptions involving the matters between states, for example, or matters that may involve national security. These are generally accepted exemptions.
This bill appears to now put forward two other categories of exemption from publication. One of them is in subclause 5(1), as I read it; it would allow the Governor in Council to make regulations to exempt from publication. That's worded fairly broadly, and although I'm not suggesting any bad faith on the part of the public service in this decade, who knows where we're going to be when big brother takes over in the next millennium? I just don't know. I'm therefore suggesting that subclause 5(1) opens the door to a situation in which a law that affects a citizen is not going to be published. I won't go into the difficulties that will come from that, but in any event, that's one.
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Secondly, by means of what I regard as a fairly artificial definition called ``the magic formula approach'' - I think you have already been introduced to it - the government will only regard regulations that contain the magic formula as regulations subject to the process and to publication.
If I'm going over old ground here, I'll move on quickly.
The Chairman: Please continue, Mr. Lee. There's no quarrel with that. I think you ought to feel free to cover whatever it is you feel to be necessary. Subject matter may have been covered before, but it may not have been covered in the way you want to cover it. So there's no policing. There is complete leeway in that regard.
Mr. Lee: Okay.
Essentially, by requiring a magic formula, this legislation would require the words of the authorizing section of the statute to include the words ``by regulation'', ``by order'', or some sequence of wording that made reference to the delegated authority to make a regulation or an order. If the delegating statute, through advertence or through inadvertence, did not contain the magic words ``by order'' or ``by regulation'', the regulations passed pursuant to that section would not be subject to the process as generally provided for in this statute. In other words, the regulation would not have to be published by reason of this statute.
Mr. Wappel will be speaking later about the issue of the magic formula problem. My focus is simply on the publication issue.
Whether MPs will forget to insert the words ``by order'' or ``by regulation'', or whether a department will forget them or will intentionally omit them in the future, we don't know. Without those words, though, there isn't going to be a requirement for publication, so this is a potential problem.
The absence of publication for the citizen is a problem. If the Governor in Council, for example, decides that certain types of individuals will not be admitted to the armed forces - and I'm just using this as an example, because it can be any kind of a regulation involving reindeer or whatever - then it may come to pass that a regulation not containing the magic formula, or a regulation that is subclause 5(1) exempted, would not be published. The citizen out there therefore has no direct mechanical means of getting access to that.
Put yourself in the position of a clerk in a courthouse in Vancouver. The judge asks for a copy of regulations that the witness has just referred to or that the counsel has just referred to. Where are they? The clerk will go to look for the regulations that have not been published and may not find them. There is no certainty that the clerk will be able to find an unpublished regulation. No matter how small it is, how unessential it is, in a court of law these things can loom very large. So that is a potential problem out there, and I want to underline and stress that for members here.
At the SJC, the question came up about what would occur if the citizen really wanted to find out what these potentially unpublished regulations are. One of the answers we got back was the Access to Information Act. I suggest to colleagues here that it is intolerable that our government, our Parliament, would pass legislation that would put a citizen in a situation in which one of the only ways or means by which he or she could find out what laws have been passed would be by filing an access to information request. This just isn't the way we ought to be running our legislative scheme in Canada.
I've said it's shocking, but it's theoretically possible. I'm sure there is no one in this room who would intend, at this point in time, to tell a citizen that he or she should file an access to information request in order to find out about a particular regulation that has been passed. So I make mention of access to information to show the potential problem.
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The statute also says - don't worry about what the statute says exactly, because I'm paraphrasing - that it's not necessary to worry about a non-published regulation because you could never be convicted for non-compliance with a non-published regulation. But that doesn't mean you can't be charged and that you wouldn't have to retain counsel and spend the money to defend yourself against a law that, in theory, you might not be able to get your hands on. That's just not right either.
I think Mr. Wappel may refer to this last point: if some of these regulations aren't published, and even though the standing joint committee has in the statute the procedural obligation to review and scrutinize, I would ask committee members how the standing joint committee is going to be sure it has all the regulations if they're not published. Where is the sealed basket of law that we're sure is there, that one can have access to in order to ensure that all the regulations are scrutinized and that all of them are made within the law? We're not sure, and I suppose one could say that all the committee has to do is to order each department and each minister to turn over, each month, papers and records and regulations that have been passed in the previous thirty days.
I'm being silly here in suggesting that's the solution, but if you're the Standing Joint Committee on the Scrutiny of Regulations, we have lost our ability to see all of the regulations without comprehensive publication.
With that, I'll turn it over to Mr. Wappel.
Mr. Wappel: Mr. Chairman, I'll be talking about the ``magic formula'', what that means and why we see it as providing a potential for difficulty.
To talk about the magic formula, you are concerned with the question of what a regulation is. One might ask why this is so important. As Mr. Lee has pointed out, we submit that it's important because only regulations that are subject to the magic formula definition will be published and therefore be subject to the scrutiny of Parliament. Parliament will be circumvented in its ability to scrutinize, except where the magic formula kicks in and is effective.
I want to explain what the magic formula is. If you want to know what a regulation is, you normally look in the definition section of the act. Indeed, as we see in subclause 2(1), there is in fact a definition of regulation. It's there, it's clear, it's broad, and one would think that would be the end of it. If you want to know what a regulation is, you look at subclause 2(1), and then you assume that regulations will be published. Well, not so, because you have to read subclause 2(1) together with clause 4 - and clause 4 is the critical section. It's this section that preserves the magic formula approach to what constitutes a regulation.
One might ask what the magic formula approach is. That's pretty well set out in clause 4 as being that the regulatory process, including - and I underscore this in particular - the scrutiny of those regulations by Parliament, does not apply unless the enabling provision making the regulation:
- calls it a regulation or specifies another type of document to be used to exercise the power
conferred by the enabling provision, such as an order, rule, by-law, list or guideline.
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We suggest that this is not logical. Either something is a regulation or it is not. I don't think we would quibble with that. If it is a regulation under clause 2, we suggest that it should be subject to the regulatory process regardless of whether or not certain magic words are used. This artificial distinction...that is, to say whether something is a regulation because it's called a regulation or because it's defined as a regulation, without using the magic words, could lead to unjust or unintended results for the people of Canada.
Let me give you an example. Subclause 10(1) of the bill provides that:
- A regulation must be published in the Canada Gazette as soon as possible after it is registered...
So we have a situation where a statute defines a word and then in another clause changes the definition, without anybody, if I may say so, really noticing it until they start delving into it carefully.
So, Mr. Chair, very simply, this means that a regulation that actually meets the definition in clause 2 but doesn't use the magic words as provided for by clause 4 will not be published. That's not logical. A regulation, which is a regulation as defined by the act, will not be published because the magic words aren't used to kick it in through clause 4. Therefore, as Mr. Lee has pointed out, the ordinary citizens will not as a matter of course be aware of the existence of this regulation, even though these particular regulations may impact directly or indirectly on them.
It's our submission, therefore, that there is no sound justification whatsoever - that's a pretty broad statement - for retaining the magic formula approach, and the examination, registration and publication requirements should apply to all delegated legislation unless it is expressly exempted pursuant to the regulation-making powers conferred by the bill.
Mr. Chairman, it's important to keep in mind that one of the principal purposes of the legislation is to ensure that the subordinate laws of Canada - and we call regulations subordinate laws of Canada because they have the effect of law - are made available to those to whom they apply, that is, the Canadian citizens. Given this legislative purpose, we submit that it's next to impossible to justify the non-publication of certain rules on the grounds that the grant of authority for making those rules did not specify a particular type of document, while also requiring the publication of similar rules that have been made under a power that contained the magic words ``by order'' or ``by regulation''. It's an artificial distinction with no basis in logic.
Allow me to give you an example. Say a statute were to provide that the Governor in Council ``may regulate the transportation of dangerous goods''. Listen to the wording: ``may regulate the transportation of dangerous goods''. An instrument resulting from the exercise of the power to ``may regulate'' will not be considered a regulation, although such an instrument clearly constitutes subordinate legislation.
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Why? Because it didn't use the magic words. If the same statute were to provide that the Governor in Council ``may by order'' - there are those magic words - ``regulate the transportation of dangerous goods'', the resulting instrument would be treated as a regulation. The magic formula approach results in an entirely artificial distinction between two classes of delegated legislation, a distinction that is not justified by reason or in law.
I want to go over this again, Mr. Chairman, and I'll use the specific example of transportation of dangerous goods. We're not talking about reindeer here. We're talking about the transportation of dangerous goods.
Depending on how a statute is drafted by whoever is drafting it, and depending on whether or not the current members of Parliament fifteen years from now are on top of the issue and notice whether or not the magic words are in, and it's passed, regulations dealing with the transportation of dangerous goods might not be subject to publication and therefore public scrutiny. That can't be the intent of this legislation. And yet, we would submit that it is in fact a valid example of what we're looking at in this bill.
Mr. Chairman, the impact on the parliamentary scrutiny of regulations is self-evident. If something's not published, it will in practice be impossible for the Standing Joint Committee on the Scrutiny of Regulations or any committee of the House or any MP or any citizen to scrutinize regulations that are not subject to the regulatory process as a result of clause 4. In theory, these regulations are subject to review because they're regulations, but in practice, since they're not published, no one will know of their existence except their creators. That is dangerous.
Therefore, we recommend that the magic formula approach to what is or is not a regulation should be scrapped. If it's a regulation it should be subject to the regulatory process, subject always to the Governor in Council exempting it from the regulatory process, but then at least that exemption would have to be published and could be inquired about by the public.
Or - and we would not propose this - at the very least, if the bill does not allow for the examination by the public of all regulations, all regulations, whether they are published or not, should be sent without us having to require it, and when I say ``us'', I mean any members of the Standing Joint Committee on the Scrutiny of Regulations... It should be mandatory that all regulations, published or not, be sent to the Standing Joint Committee on the Scrutiny of Regulations or to any other committee that the House feels is appropriate, so that there is some openness in the system and the Canadian citizen can be assured an opportunity to review regulations even though they haven't been published.
We feel this is absolutely critical, and that's one of the reasons we've come here. We are here to bring this specifically to your attention.
I am now going to turn it over to Mr. Lee, who will talk about another thing. He'll explain it. It's not in the bill, and it's very interesting that it isn't in the bill. He'll explain why. It's the disallowance of regulations.
Mr. Lee: Thank you.
In approximately 1985, Parliament amended the Standing Orders of the House of Commons to provide partly for the regulation scrutiny provision of the standing joint committee that exists now, and secondly, to provide for what is called a power of disallowance.
The standing joint committee function has been in existence here for over 25 years. The disallowance authority has been in the Standing Orders and been in place since 1985. When it was put in place, it was inserted only into the Standing Orders. It was not made part of the governing statute, and that has some practical implications.
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The disallowance power, as you will know, allows the House of Commons to order the revocation of a statutory instrument or regulation. That authority has been used by the House three or four times in the last six years.
It involves a motion and a report from the SJC, which is a joint committee, and reports to both Houses. It contains a motion ordering the revocation, which is filed with the clerk and placed before the House.
If the minister involved does not take up the matter for debate on a Wednesday afternoon, then the motion is deemed adopted by the House. As I stated, that has occurred about four times since 1989.
There is one idiosyncrasy involved in this procedure. Although the House is able in law to require and order a revocation of a statutory instrument that has been passed by a minister or by the government, because of the peculiarities of parliamentary law the House is not able to so order a revocation of a regulation made by an agency that has been delegated the regulation-making authority.
There are many examples, and one is the CRTC. It makes its regulations itself, and those regulations are simply out there and not subject to the disallowance power. There are many other agencies. I don't have a list with me, but suffice to say there are quite a few. The standing joint committee has been in correspondence with some of these agencies. Some have been more cooperative than others.
In any event, I think it is odd that while the House has the ability to disallow or order the revocation of an order made by the Governor in Council, it has not sought out or obtained the authority to do that with a hypothetical rogue agency. This particular idiosyncrasy of the omission to make the disallowance power comprehensive was noted at the time.
The Attorney General of the time, Ray Hnatyshyn, indicated that while in principle the disallowance power should probably be more comprehensive, the government wished to give some time to the new authority to see how it operated. As it turned out, there were no disallowances between 1985 and 1988, so who knows whether it worked or not? It was not used for a number of historical reasons.
By 1989 it was used, and in my view it has been used successfully. It is a useful instrument.
So I'm pointing out to colleagues that there is this omission. An authority that the House has put in place is not fully useful for all of the regulatory field. I want to point out this issue was taken up in the last Parliament in 1992-93 by the regulations and competitiveness subcommittee.
I hope members of this subcommittee have had an opportunity to look at least at the recommendations of that subcommittee. I will read one of the recommendations of that subcommittee, item 5.4. My recollection is that it was a unanimous report of that subcommittee of the finance committee.
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It says:
- The present disallowance procedure under S.O.'s 123-128 should be replaced by a statutory
procedure covering all statutory instruments (and any part of a statutory instrument) not subject
to affirmative-resolution procedure.
In any event, it has recommended that the deemed disallowance feature of the present procedure, when a resolution is not disposed of, should be retained and given statutory force. It has noted and agreed that this is what should happen. I am putting to you that a statute that reorganizes, modernizes and brings up to date the government's regulatory process and the process by which Parliament scrutinizes those instruments should contain that power of disallowance - the broadened disallowance feature. It's been over 10 years. We've had an opportunity to see it operate. As one who has experience on the SJC, I am telling you I can see no reasons why it shouldn't be amended in the way I've suggested and there are reasons for proceeding. I hope you see the positive reasons.
I leave that with you. It's a matter of more than just passing interest. I did sat on the subcommittee on regulations and competitiveness and I've watched this field for some time.
I'll stop there and let Mr. Wappel continue.
Mr. Wappel: Mr. Chairman, I see the time is flying, but I only have one further thing to talk about, and that's the Constitution - I guess we could be here for three weeks talking about the Constitution - specifically section 133 of the Constitution.
Let me say parenthetically on it, with respect to Mr. Lee's remarks on disallowance, that your committee may or may not be told, should you be disposed to even consider an amendment to allow disallowance, that it may be out of order. It would certainly not have been out of order had this committee been mandated prior to second reading.
On the Constitution, section 133, I'm not going to read the whole section, but it basically deals with the English and French languages and the right of anybody to use either of the official languages when dealing with the House of Commons or the legislature of Quebec. I will read the last sentence:
- The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and
published in both those Languages.
This decision was refined by the Supreme Court of Canada in the case called Reference re Manitoba Language Rights [1992] 1 S.C.R. 212. In that case, the Supreme Court of Canada held that instruments of a legislative nature were included in section 133. The court stated that the constitutional language requirements apply to instruments that possess at least the following three characteristics as a minimum: one, they establish a rule of conduct; two, they have the force of law; and three, they are of general application rather than being directed at specific individuals.
Therefore, we would suggest it's evident that the overwhelming majority of regulations, as defined in clause 2, are subject to section 133 of the Constitution.
But what of regulations where the magic words are not used, and therefore these regulations are not published? If they're not published, do they have to be in both official languages? Are they valid?
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In the case of Sinclair v. Quebec, citation [1992] 1 Supreme Court of Canada Reports 579, the Supreme Court of Canada dealt with a case where a number of instruments were made in the course of amalgamating two cities in the province of Quebec. Some of the instruments were published in French only. Some were not published at all, interestingly enough. Maybe they didn't have the magic formula. I don't know; but it's important that you recall they weren't published at all.
The Supreme Court struck all of the instruments down as unconstitutional, contravening section 133. I quote from the judgment:
- All of the instruments in question were printed and published in the French language only, or
were not officially published at all. Clearly, therefore, the requirements of s. 133 were not
complied with. It follows that all of them are, and always have been, nullities and of no legal
force and effect.
So we bring this to your attention, and mercifully we now come to our conclusion.
Mr. Lee: I'll just recap the four areas we've touched on. We present these with the view that this statute is capable of amendment to address these four concerns.
The first one is the issue of the absence under Bill C-25 of comprehensive, accessible publication. We believe - you do agree with me, Mr. Wappel? - that in this day and age we are unable to find a rationale for not assuring to the citizen taxpayer comprehensive publication of and access to all regulations - all of them. This bill, either because of specific exempting clauses or the use of the magic formula, does not provide for that comprehensive publication or access. That's a serious shortcoming here, in our view.
Second is the extreme artificiality of the magic formula definition itself. I hope you accept as self-evident that this extreme artificiality places some citizens in jeopardy in the future. It is an artificial distinction. In my view as an MP, I look upon it as potentially embarrassing Parliament. In any event, we believe it is artificial in the extreme and inappropriate as an instrument for assuring certainty in this field of regulatory affairs.
The third area is the completion or the need to complete the disallowance power, which at the moment is truncated and doesn't apply to agencies that have been given delegated regulatory authority.
The last item of Mr. Wappel's is the risk that the clauses outlined in this bill may offend or may cause the government to offend the provisions of the Constitution Act. We feel we should not proceed without giving full and complete attention to the requirements of the Constitution. We don't want to get into a trap. We should ensure that this bill itself assures 100% compliance with the provisions of the Constitution, both generally and more specifically as it applies to the two official languages.
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Mr. Wappel: Mr. Chairman, thank you for the opportunity for allowing us to give our points of view with respect to this bill.
We are simply, as two concerned members of Parliament, bringing forward our concerns to this committee for reflection and consideration. We remind the committee the standing joint committee is continuing its own examination of the bill and will be reporting to both Houses sooner or later. We urge you to look with great care at the points we've raised. Again, I don't say we're necessarily ready, but we're available to take your questions.
The Chairman: Thank you very much, gentlemen. It is we who should thank you for your preparation and taking the time to appear before this committee. It's been very, very helpful.
I just want to say one thing, however. Children may read the transcript of this testimony and Christmas is coming on. Just to clarify, the government doesn't mean any harm to any reindeer.
Mr. Wappel: That's right.
The Chairman: I would like to start the questioning with Mr. Lebel.
[Translation]
Mr. Lebel: What bothers me is that they have covered everything and that I understood everything they said. I do not wish to give them an unnecessary rough time. For the sake of certain of our colleagues here who might not have grasped the magic formula as such, since it is a rather abstract notion, could we ask Mr. Wappel to once again briefly summarize the magic formula that differentiates clause 2 from paragraph 4(1)?
[English]
Mr. Wappel: Thank you, Mr. Chairman.
The magic formula really is the use of certain specific words. We'll call them magic words. If the words are used, then under clause 4 they're regulations subject to the regulatory process. If the words are not used, then they're still regulations but they are not subject to the regulatory process. The words are by order or by regulation. If those words are not used, then those very regulations are not subject to the regulatory process. This is a totally artificial, illogical distinction.
[Translation]
Mr. Lebel: Mr. Wappel, I wonder if you remember a whole slew of bills that were introduced a year and a half or two ago. We began with bill C-48 and went right up to bill C-62 I believe. According to the language of these various pieces of legislation, the Governor in Council could make regulations and do those things we have been talking about.
You remember that there was a whole slew of regulations. None of those pieces of legislation specified that the Governor in Council could proceed ``by order'' or ``by regulation''. Those words did not occur in that legislation.
Those bills have since then been signed into law. The regulations stemming from them would presently not be subject to the regulatory process if bill C-25 had been passed into law at the time. Is that what you are saying?
[English]
Mr. Wappel: Mr. Chairman, I must confess I do not remember any such bills coming down. This doesn't mean they didn't. Mr. Lee might be able to help out. But the answer to the question would be that it is my understanding of Bill C-25 that it is very simple. If the magic words are not used, then the regulatory process does not apply to those regulations. If the regulatory process does not apply to those regulations, then those regulations are not to be published. Period. Full stop.
The Chairman: Mr. Lee.
Mr. Lee: I just want to refer colleagues to subclause (1) of clause 4. This is the definition of the magic formula. It is only six lines long, and it's fairly clear what it means.
I also did want to comment on this issue of whether or not the glass is half empty or half full. I think it is a great bill. There are just these four minor concerns we have with the bill.
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[Translation]
Mr. Lebel: Mr. Lee, if indeed we wanted to subject all statutory instruments to the publication requirement, including those that would not be considered as such according to the magic formula, how would we draft paragraph 4(1)?
In fact, we would keep the same language:
4. (1) The regulatory process applies to any regulation made under an enabling provision
We would strike out the words:
- that calls it a regulation or specifies another type of document... such as an order, rule, by-law,
list or guideline
4. (1) The regulatory process applies to any regulation made under an enabling provision providing for the exercise of regulatory powers.
[English]
Mr. Lee: There is the process called the regulatory process. It involves the drafting, the consultation, the pre-publication, the publication, the enactment. It involves all of this on the one hand. There may be good reasons for not subjecting every regulation to every element of the regulatory process, but we suggest the magic formula is not the right tool to segregate out those that should not be subject to the regulatory process. Until you devise the right instrument to cull out clearly those you do not want to be subjected to every part of the regulatory process, I don't think we should make a move on the chessboard.
There is another part of this process. It is the parliamentary review. This review occurs after the end of the process. The parliamentary review doesn't in any way, shape or form alter the process by which a regulation is conceived of, put in place and executed. The parliamentary process happens after the end of all of this. Those are two separate windows here we're looking at.
Mr. Wappel: I would specifically answer Mr. Lebel's question by referring you to clause 4. I'm not a drafter, but if I was going to answer the question off the top of my head I would say this. Let's say clause 4 read something like ``Subject to subsection (2), the regulatory process applies to any regulation made under an enabling provision''. Subclause (2) would exempt certain things and then subclause 5(1) could be amended to read: ``The Governor in Council may, by regulation, exempt regulations from the application of the regulatory process or any part thereof''. This would deal with Mr. Lee's situation, where there might be regulations that don't have to go through the whole regulatory process.
The idea is that the magic formula definition, which is the last four lines or so of subclause 4(1), is, for the reasons we stated, unnecessary.
[Translation]
Mr. Lebel: You have not addressed the forms issues, but I know that it does concern you. I know that all public servants always act in good faith. By definition, public servants are automatically admitted into heaven. That is a given.
Take the example of the census form handed out this year, where some people were asked to indicate their account number, the name of their caisse populaire or bank, its address, the name of its manager, the amount of money they had in their account and so on. Public servants will usually tell you that these are just administrative forms. You know that the regulatory process mentioned in clause 4 does not apply and that this is explicitly stated in paragraph 4(2):
(2) The regulatory process does not apply to a form of an administrative nature...
Do you believe that this is desirable considering the good faith that characterizes public servants, or do you think that it is undesirable considering the good faith manifested by our present public servants, who may not be here for ever?
[English]
Mr. Wappel: Mr. Chairman, this is not one of the submissions we were specifically here to bring to your attention. I believe Mr. Lebel is referring to subclause (2) of clause 4.
Mr. Lebel: Oui.
Mr. Wappel: The issue would be what is a form of an administrative nature. Whether or not a particular type of census question would be a form of an administrative nature is not defined in this bill. We're not necessarily suggesting the words ``administrative nature'' be defined. Presumably that would be left to the discretion of officials, subject to any court action that might be taken. From my point of view, I would prefer just to deal with the four points we brought up specifically.
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The Chairman: Mr. Lee.
Mr. Lee: Yes. This subclause 4(2) is clearly an attempt to cull out things that are reasonably of an administrative nature and don't need delegated legislation specifically. When all else fails, there's always Question Period, Mr. Lebel.
[Translation]
Mr. Lebel: I think, Mr. Lee and Mr. Wappell, that you have not quite grasped the meaning of my question. According to paragraph 4(2), forms are not subject to the regulatory process mentioned in paragraph 4(1). Are we agreed on this?
I agreed with you on that point, but I wonder whether that does not create a risk. Who will decide whether a form is of a purely administrative nature? I believe that this leaves room for interpretation or arbitration. This is not a core element of the legislation, but it is a cause for concern. That is what I feel. I have no further questions.
The Chairman: Thank you, Mr. Lebel.
[English]
Mr. Kirkby.
Mr. Kirkby: Thank you very much.
I thank you, witnesses, for your testimony. I know you both have spent a significant amount of time working in this area. We're happy to have you here indicating your concerns.
You indicate that what certain regulations are called in the bill will determine whether or not they go through the full regulatory process. First, I guess we would point out that members of Parliament do vote and do initially pass the legislation that creates the framework for regulations and have a say as to whether or not those words are used in the particular instance. Is that correct?
Mr. Wappel: Mr. Kirkby, that is absolutely correct. However, I can think of a recent example of how things get slipped by members of Parliament when they don't intend it. That is the recent amendments to... I don't know what the act was called, but it revoked the 100-year-old privilege of members of Parliament to travel on the rails. This particular provision in this particular statute was inserted in this huge comprehensive transportation bill.
This right, which had existed since the late 1800s, was taken away simply because it wasn't reproduced. I would remind you that no members of Parliament really noticed it until it was too late; that is to say, after the bill was passed. Notwithstanding that we all know we're diligent, it was only after the bill was passed that it came to our attention that this particular section had been removed, clearly without any opportunity to discuss the matter.
So while I have the greatest faith in members of Parliament now and in the future, there is no doubt that with the heavy workload we have and with the fact that most members of Parliament, contrary to public belief, are not lawyers, they will not be expected, and I certainly wouldn't expect them, to examine what is traditionally the last clause of a bill to see what the Governor in Council may do and pick up on those two magic words.
Mr. Kirkby: Secondly, don't you think when bills are being drafted, where the regulations are...? The purpose of regulations is to obtain compliance from members of the public or a certain segment of the public in a certain area. You say because it's called a certain thing in the legislation it follows that it won't have to be published. Don't you think the decision is made: well, these are fairly significant regulations, these aren't minor details that nobody cares about or that affect nobody...? So don't you think if it's important and significant regulations, it will be called regulation or something to trigger the full-blown hearing mechanism? Is it not the other way around when you're dealing with this kind of question?
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Mr. Wappel: No, I don't think so. First of all, every regulation affects somebody, otherwise there's no point in drafting it and proceeding with it. So to say that a regulation affects nobody is incorrect.
Secondly, who's going to decide this? Is some bureaucrat in some room on the fifteenth floor of some building going to make a determination as to whether something is significantly important enough to a significantly important section of the Canadian population to trigger the magic formula words? I have no faith in that kind of system.
The Chairman: Are there any further questions? Mr. Maloney -
Mr. Lee: If I could, Mr. Chairman... Without being seen to be undermining the general good faith of the public service and the administration right across this country, I don't recall any consultations with Parliament on the abolition of the rail privilege here a few months ago. My recollection is that there was absolutely none.
The parties who drafted that legislation knew exactly what they were doing, and I'm sureMr. Kirkby voted for that bill - I don't know whether you did or not, Mr. Kirkby, but -
Mr. Kirkby: I voted for the bill, but I can assure you that the abolition of my train privileges has not affected my life in large measure.
Mr. Lee: Of course it wasn't a major issue, but if Mr. Kirkby was aware of that issue when he voted for it, I'd be -
Mr. Kirkby: I'm sure I was.
Mr. Lee: This particular witness was not.
Mr. Wappel: Nor was I.
Mr. Lee: I don't think any MP really was. In any event -
[Translation]
Mr. Lebel: You should have been told, since no one was aware of that.
[English]
The Chairman: I'd like to ask a few short questions, if I might, about the publication, about the fact that certain regulations will not be published.
I may be wrong, but I believe this committee was told that regulations that affect certain areas would become generally known to people who are interested in those areas, and that they would be somehow made aware of the regulations through the course of their activity, their business, or just general discourse. Is that true? Can you rely on that?
Mr. Lee: The intention is great; the ability to implement that intention may or may not be there. One doesn't know whether you're comprehensively able to access each of your clients in a ministry. You do your best.
We are not talking about the 97% that they're going to get to. I think we're focusing on the 3% of citizens they won't get to, for various reasons, and who won't, in the ordinary course, have had access to the existing ability to find out what's there when they're in doubt.
I think the process that's being put forward here is urban and modern, and it's right up to date if you're on Bay Street. But it's not necessarily up to date if you're living in the suburbs of Cochrane or Rainy River. We have to think about those Canadians, too, who don't necessarily have a computer hooked up to the Internet. They are the people who will call their lawyer, who doesn't have a 10,000-volume library, and ask, What do we have here? To be met with an answer like ``File an access to information request'' is intolerable.
Mr. Wappel: In answer specifically on that question, we're also talking here about the historic powers of Parliament and the historic powers of the representatives of the people - that is to say, you and me. It becomes literally an impossibility - not a theoretical impossibility - for Parliament to scrutinize a regulation that has not been published. How will anyone know of its existence unless and until, of course, it impacts on a citizen who walks in and complains?
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We're trying to point out the subtle erosion, if I may put it that way, of the historic rights of Parliament to ensure that it has the ability to examine all regulations.
The Chairman: I have a couple of other questions for either of the witnesses. Are you saying, then, that even though certain regulations will not come before the standing joint committee, there really is no chronicle of regulations...? Are you saying that no one, other than those in the interested departments, will know that those regulations are there? Is that safe to say?
Mr. Lee: We're concerned about that. Clause 25 of the bill says that every regulation stands permanently referred. Of course, that's regulations, and that's all of them, even those that are magic-formulaed or non-magic-formulaed.
The intention of the department is good here. They're saying that all regulations should stand referred. But the problem is that we won't have a mechanism or comprehensive system in existence that allows the committee to know about every regulation that's been passed.
At least that's how we understand it. If you don't have the comprehensive publication, by what means will Parliament become aware of it? If a particular department of government doesn't publish, how do we know it has passed a regulation? They will send us everything, but someday somebody is going to forget, or one day Parliament is not going to knock on the department's door. That's what we're concerned about from the parliamentary perspective.
The Chairman: Thank you very much.
Mr. Lebel.
[Translation]
Mr. Lebel: One final question. Say it was considered advisable not to publish a given regulation, could it not then be considered also advisable to not communicate that regulation to someone who might specifically ask for it?
Say that I am being prosecuted for the breach of some regulation that was made but never published and that, for my defence, I insist upon obtaining that regulation. Could I not then be told that I cannot have it, that the public does not have access to it since that was the original reason for not publishing it. Do we not run the risk of having to deal with that type of reasoning?
[English]
Mr. Wappel: This may seem far-fetched, but just as an example, suppose that for one reason or another a particular chicken processor is exempted from the regulations requiring that the machinery be cleaned in every 24-hour period. Suppose that is done by non-magic-formula words. The only people who are going to be aware of that regulation are those in the department that issued the regulation and the processor who is exempted from that regulation.
There may very well be people in Canada who are concerned about that, who are concerned that a particular processor of chicken parts has been exempted while other chicken part processors have not been exempted - including the competitive factor - but no one will know about it except the department and the processor who has been exempted, because the regulation has not been published. That, I think, if I could use that example, demonstrates the problem.
The Chairman: Mr. Maloney.
Mr. Maloney: You indicated that the Standing Joint Committee on the Scrutiny of Regulations was examining this legislation as well. Are you doing this gratuitously?
Mr. Wappel: Yes.
Mr. Maloney: And will you be making a report or making a submission to this committee? What are you going to do with your review?
Mr. Lee: We would be obligated to report to both Houses. If we can finish up quickly, we'd be delighted to send over a copy of the report just as soon as it's -
Mr. Maloney: When do you anticipate you'll be finished your deliberations?
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Mr. Lee: We're hoping to make a huge dent in it this week.
Mr. Maloney: Are you also hearing from witnesses?
Mr. Lee: We've heard just about exclusively from departmental officials, but we haven't excluded the possibility of a witness or two. What with departmental officials and the resources of the committee, we've had a pretty good listing of resources and people with good heads, so -
Mr. Maloney: Are these four areas you've zeroed on the predominant concerns of the committee?
Mr. Lee: At the risk of shocking you, our work list with the SJC is considerably meatier than the four items. We have a number of issues. We have them broken into first tier, second tier and third tier. We've covered just some of the first-tier issues here with you today.
Other issues have been brought to the attention of officials, so they are familiar with some of the issues. Some of the issues are extremely technical, but we think the exercise is useful, particularly for the parliamentary function. I don't blame the officials at all for not involving themselves in the issue of how Parliament should do this. This is perhaps more an issue for parliamentarians than it is for the public servants. And when they draft the bill for the executive branch of government... Parliament is certainly part of the program here in clause 25, but we feel Parliament should deliver its own scrutiny of the bill.
And hopefully it's constructive. We would really like to be able to finish up and make something available to this subcommittee in the event it feels some changes might be needed in the bill. We feel changes are needed and we'd love to be able to contribute constructively to that.
There is a possibility that one or more individuals from the standing joint committee, which operates in a non-partisan way - it looks as though we have unanimity on all of this stuff so far - would be prepared to propose amendments at this subcommittee and, failing that, in the House.
Keep in mind that senators also have an interest in this. They are no less concerned about the provisions of the bill. I would dearly love to have a consensus agreement in this place and in the other place among the individuals who've been working in this area for a number of years so the bill could go through as a sleepy, non-controversial item. I don't know whether that will occur, but at this point we're just trying to help make the bill a little bit better.
Mr. Maloney: And a bill essentially in the same form as this legislation was before the previous parliament -
Mr. Lee: Session.
Mr. Maloney: Session.
Mr. Lee: Six months ago.
Mr. Maloney: And it died on the order paper. It was being considered by your committee.
Mr. Wappel: No. It was being considered by a subcommittee of the Standing Committee on Government Operations of the House of Commons under the chairmanship of Ian Murray, and it had been referred to that committee prior to second reading, this parliament, prior to the prorogation.
Mr. Maloney: But did they not report back?
Mr. Wappel: We only had one meeting.
Mr. Maloney: I see.
Mr. Lee: All of the members of that committee, with the exception of the chair, were members of the standing joint committee. That subcommittee was populated with the House's SJC members.
Mr. Maloney: Thank you.
The Chairman: Thank you for your questions, Mr. Maloney.
Thank you, gentlemen.
We will be reconvening tomorrow at 3:30 p.m. If there is a vote at 3:45 p.m., as has been stated, we will be commencing immediately after the vote tomorrow afternoon. We'll be going on to clause-by-clause on Tuesday at 9 a.m. Mr. Maloney will be chairing tomorrow.
Thank you, ladies and gentlemen.