House of Commons Hansard #111 of the 38th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was young.

Topics

1 p.m.

The Speaker

As is our practice on Wednesday we will now sing O Canada and we will be led by the pages.

[Members sang the national anthem]

Delegated LegislationOrders of the Day

1:05 p.m.

Halifax West Nova Scotia

Liberal

Geoff Regan LiberalMinister of Fisheries and Oceans

moved:

That, given the importance of the fisheries in Ontario and the introduction of Bill C-52, An Act to amend the Fisheries Act (terms and conditions of permissions, leases and licenses) by the Minister of Fisheries and Oceans which addresses the concerns of the Standing Joint Committee on the Scrutiny of Regulations, and pursuant to Standing Order 124 and subsection 19.1(5) of the Statutory Instruments Act, the resolution of the Standing Joint Committee providing that subsection 36(2) of the Ontario Fishery Regulations, 1989 be revoked, presented to this House on May 9, 2005 in its Second Report (Report No. 75 – Disallowance), not be adopted, and that this matter be referred back to the Standing Joint Committee for further study.

Mr. Speaker, may I say at the outset that while the House has many strong and mellifluous voices, I do not think we have ever heard O Canada sung quite so well.

Delegated LegislationOrders of the Day

1:05 p.m.

Some hon. members

Hear, hear!

Delegated LegislationOrders of the Day

1:05 p.m.

Liberal

Geoff Regan Liberal Halifax West, NS

I see that members on all sides appear to agree with me on that.

I appreciate the opportunity to rise in the House today to respond to this disallowance motion tabled by the Standing Joint Committee for the Scrutiny of Regulations. I would like to thank members of the committee for the important role they play in closely examining Canada's legislation and regulations.

The government places a high value on what they have to say and that is why I take their concerns about the Ontario Fishery Regulations very seriously. The committee feels that greater clarity and certainty are needed on matters of legislative authority with respect to certain Ontario Fishery Regulations. Specifically, its concern lies with the requirement for compliance with fishing licence terms and conditions. The government is of the opinion that the provision in question is legally sound and within the authority of the Fisheries Act.

Fishing licences are, in many regards, the key fisheries management tools in Canada. They regulate fishing activities by setting the following terms and conditions: total allowable catch, authorized fishing gear, timeframe and areas where fishing can occur.

These conditions are crucial for conservation and orderly management of not only Ontario's fisheries but of fisheries throughout the country.

The fishery is a highly regulated industry. This high level of regulation is necessary. A valuable natural resource like fish needs to be managed carefully, with an eye to the future. Mechanisms must be in place to ensure conservation and that rules of the fishery are being followed. Fishing licences provide this mechanism. The conditions that they provide are key elements in proper management and control of the fishery, as well as for the conservation and protection of fish on behalf of all Canadians.

The Government of Canada has a clear legislative power to ensure conservation and protection of fish stocks, and the issuance of fishing licences is a demonstration of this power. The Ontario Fishery Regulations require that the holder of a commercial licence comply with licence terms and conditions. The government continues to maintain that this provision is in fact legally sound.

Having said that, I agree that greater certainty and clarity could be provided for the requirement to comply with the terms and conditions of fishing licences, and that is why I introduced Bill C-52 in the House last week.

The bill includes an amendment that would add a new section to the Fisheries Act dealing with compliance with terms and conditions of fishing licences. Specifically, the amendment would clarify that it is a requirement of the act to comply with fishing licence terms and conditions. We believe the amendment would provide a measure of certainty and clarity, the kind of measure sought by the Standing Joint Committee for the Scrutiny of Regulations.

As members know, Bill C-52 was debated at second reading on Monday. Regrettably, the Conservatives and the Bloc indicated they do not support a bill that addresses the concerns identified by their own colleagues on the standing joint committee. After two days to consider the bill, I hope they have reconsidered because enacting Bill C-52 would certainly be a preferred approach to dealing with the committee's concerns rather than adopting the disallowance resolution.

If the disallowance resolution is adopted, subsection 36(2) of the Ontario Fishery Regulations would be revoked. This would create a serious legal gap in Ontario's ability to enforce licence conditions and to manage the fishery on behalf of all Ontarians. Ontario's fishery would be put in considerable risk. It would send a dangerous signal that Parliament is not supportive of requiring licence holders to abide by their licence conditions. Imagine what a terrible signal that would be.

This is a great concern to many groups in Ontario, including the Ontario Federation of Anglers & Hunters, who have written several members in this House over the past two days urging them in the strongest possible way to support this issue.

Each year the province issues some 500 commercial licences and 1,400 commercial bait fishery licences. Ontario's commercial fisheries represent an annual landed value of over $40 million. They contribute anywhere between $250 million and $500 million to the economies of both Ontario and Canada. Economics aside, disallowing the provision in question would also jeopardize conservation.

As we can see, compliance with licence terms and conditions is essential to ensure that fishing practices are coordinated and focussed on conservation. All the provinces—that is, Ontario and the others—rely on compliance with the rules and need an efficient regime to deal with instances of non-compliance.

I should add that Ontario's minister of natural resources has written to me asking that the Government of Canada do everything in its power to protect the provision in question. In his letter he stated:

Without this provision, Ontario would literally have its hands tied with respect to enforcement of commercial fishery. It is entirely likely that the revocation of subsection 36(2) would result in chaos in this sector and threaten the sustainability of our fishery resources.

The conservation and orderly management of the fisheries are vital components of a strong, viable fishing industry. The Ontario fishery regulations help ensure that these components are in place.

I should also point out that the passage of Bill C-52 will not change existing practices on the ground. Allow me to be clear on this. The requirement to comply with licence conditions remains. Bill C-52 would move that requirement from the regulations into the act. That is all it does. As I stated Monday, this bill stands as an effective transitional measure to a broader initiative to review the Fisheries Act, as I hope my colleagues will want to do in the near future.

On May 17, I met with the Standing Committee on Fisheries and Oceans to reiterate that I am very serious about updating the act. This 137-year-old legislation needs to be modernized. Canada's fisheries have changed and evolved over the years and I have asked the Standing Committee on Fisheries and Oceans a number of times for its input on how they should be reformed. I look forward to receiving it, I hope, before too long. I look forward to it taking an interest and my colleagues across the way showing an interest in reforming of the act.

In particular, I requested input in four areas: allocation, co-management, compliance and sanctions. Sanctions, of course, is an area of particular interest in the Standing Joint Committee on the Scrutiny of Regulations and really what we are talking about here today.

I plan to move forward with a broad reform as quickly as possible and I hope to have support from members across the way for that. In the meantime, Bill C-52 would address the standing joint committee's concerns and make disallowance unnecessary. It would ensure that the Province of Ontario has the certainty it needs as it manages and conserves its fisheries on behalf of its citizens and it will provide an effective transitional measure as we examine more comprehensive changes to the Fisheries Act.

That is why I filed a motion that the committee's resolution not be adopted but referred back to it for further consideration.

Delegated LegislationOrders of the Day

1:15 p.m.

Conservative

Loyola Hearn Conservative St. John's South, NL

Mr. Speaker, the one thing I can agree with the minister on is his remarks in relation to the tremendous job done by the pages on O Canada. It was a rendition of O Canada, the likes of which we certainly have not heard in this place. I do not want to run down the singing abilities of my colleagues but today's version certainly was the best I have ever heard. I congratulate the pages. That would be my final point of agreement with the minister.

When we debated Bill C-52 a few days ago I thought the minister had received such a trouncing on it from all parties, not just from the Bloc and ourselves, but also from the NDP. What happened of course is that they pulled it right off the legislative agenda. I do not know why we are even debating the motion today.

However, having said that, instead of my wandering way of dealing with this, I will read some stuff into the record that might educate the minister as to exactly what is happening here.

The Standing Joint Committee on the Scrutiny of Regulations, the minister says, expressed a real concern, but it also gave a fair amount of comfort to the fact that the concerns raised by the minister from Ontario and brought forth here by the minister, although I am not sure who went to whom first, were certainly not valid. The committee stated:

In closing, the Committee wishes to briefly address the statement by the Ontario Minister of Natural Resources that:

Terms and conditions [of licences] are currently the only mechanisms by which Ontario can establish allowable quota, areas where fishing can occur, designates who can take fish under a licence, reporting for commercial fishing licences.

To the extent this comment suggests that disallowance of section 36(2) would impair the ability to impose terms and conditions of licences, it does not reflect a clear understanding of the nature of section 36(2). Disallowance of that section may change the manner of enforcing compliance with terms and conditions of licences, but would certainly not affect in any way the ability to impose such terms and conditions.

In the same letter, the Minister goes so far as to suggest that the disallowance of section 36(2) would “threaten the sustainability of our fisheries resources”.

And this is the point upon which the minister hinges his argument. The committee goes on to state:

Whether or not section 36(2) remains in the Regulations, the authority to issue licences and to impose terms and conditions on the licence would remain unimpaired, as would the ability to enforce observance of those terms and conditions. The imposition of a fine or a jail term for breach of a licence condition, as opposed to suspending or cancelling the same licence, has nothing to do with the sustainability of the fishery resource.

While your Committee understands that the federal and provincial Ministers favour the enforcement of terms and conditions of licences through fines and imprisonment rather than licence suspensions or cancellations, the Committee would be remiss in its statutory responsibility if it allowed this policy preference to override the principle that the Executive may not create offences punishable by criminal sanctions without clear authority granted by Parliament. It is the responsibility of the Executive to ask the Houses for that authority.

Parliament has a duty to examine regulations to determine that they do not exceed the authority delegated under the law.

Since 1987, 18 years of dealing with this very issue, the joint committee has drawn attention to the improper character of subsection 36(2) of the Ontario fisheries regulations. In March 2000, the joint committee reported in part:

Section 36(2) of the Regulations provides that:

36.(2) No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

This provision was created with a view to making a contravention of a term or condition of a licence an offence under the Fisheries Act, R.S.C. 1985, c. F-14.

Section 78 of the act provides as follows:

  1. Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of

(a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

(b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.

A term or condition of a licence is not a provision of the act or the regulations, and a violation of such a term or condition does not constitute a contravention of the act or regulations within its meaning. The enactment of a general prohibition against contravention of a term or condition of a licence as part of the Ontario fishery regulations, 1989 is designed to attract the application of section 78 of the act.

While the person contravening the licence term or condition is not liable to the penalties set out in the Fisheries Act, following the enactment of subsection 36(2) of the regulations, that person would be liable for a breach of subsection 36(2) of the regulations. Subsection 36(2) then is intended merely to bridge the gap between a contravention of a term or condition of licence and the penalties provided for in the statute. In effect, this regulatory provision is intended to do indirectly what could not be done directly, namely to impose a criminal liability for the breach of a term or condition of a licence.

There is not a commercial fisherman in the country who, if he understood what was happening here, would agree with the minister in imposing such a rule.

We can go on with technicalities but as my time is running out I will just make a few other points. This issue has been with us for 18 years, not since 3 days ago when the minister tabled a bill without giving anyone any information about it and hoped to ram it through the House because it was supposed to be a minuscule bill. We see how minuscule it with the outcry that we have seen across the country.

However since no corrective action has been taken by the Department of Fisheries in the past 18 years, the Joint Standing Committee on Scrutiny of Regulations has presented a report that regulations should be repealed. The government says that Bill C-52 would fix the problem. We disagree. Bill C-52 is a power grab by the department to give itself sweeping authority to create imprisonable offences within licences and to remove those licences from the scrutiny of regulations committee.

Licences are not examined by the cabinet and are not passed by Parliament and yet people could be imprisoned for violating a licence.

The government has known for 18 years it was acting without authority. The Liberal government now asks Parliament to ignore its failures and to allow the regulations to stand. It asks Parliament to say that Canadians should be fined up to half a million dollars and imprisoned for two years less a day, without the authority of law, only on the basis of a violation of a licence.

Bill C-52 has not passed the House, may never pass and we probably will not see it again, and yet the Liberal government wants to continue with its illegal regime because it has introduced the bill.

The rule of law and the rights of Canadians to be subject to laws passed by Parliament are at stake. That is the big question. The rule of law is what we are trying to contravene. The Liberal government knows that the regulation is illicit. It knows it has not passed enabling legislation and it knows it has had over a decade to fix the problem.

Parliament should report the rule of law, protect the rights of Canadians and tell the department and government that they have run out of time. The regulations should be repealed. It dishonours the Crown. The rule of law should trump government inaction.

Delegated LegislationOrders of the Day

1:25 p.m.

Bloc

Monique Guay Bloc Rivière-du-Nord, QC

Mr. Speaker, I rise today in my capacity as a member of the Standing Joint Committee on the Scrutiny of Regulations.

I want to say at the outset that we will be supporting the government motion. Obviously, we would not want to create a legal gap that Ontario is not prepared to deal with.

We are extremely concerned about the concerns expressed by the Ontario Minister of Natural Resources to the Minister of Fisheries and Oceans.

I would like to read a short excerpt from the letter, because I believe it is important to know what it says. It reads, “As you know, subsection 36(2) is the offence section under which Ontario enforces terms and conditions on approximately 500 commercial food and 1,400 commercial bait fishing licences. Terms and conditions are currently the only mechanisms by which Ontario can establish allowable quota, areas where fishing can occur, designates who can take fish under a licence, reporting for commercial fishing licences. Without this provision, Ontario would literally have its hands tied with respect to enforcement of the commercial fishery. It is entirely likely that the revocation of subsection 36(2) would result in chaos in this sector and threaten the sustainability of our fisheries resources”.

Being very concerned about the Ontario minister's reaction, as a responsible political party, we have decided to support the motion calling on the joint committee to review this whole interpretation.

This does not change our position on Bill C-52. We are opposed to it for legal reasons. We do not believe that public servants should have the legal authority to send people to prison. We find it is not reasonable to act that way. Thus, we are still opposed to Bill C-52.

On the other hand, it would be interesting to have the witnesses appearing before the Standing Joint Committee on Scrutiny of Regulations explain to us exactly what is happening. I would like Ontario's minister to meet with us, as well as the Minister of Fisheries and Oceans here in this House today, to give us a full account. That way, all the parties could sit down together and look directly at what is happening.

We have to be responsible. Knowing that the parliamentary session will end shortly and that the fishing season has already begun, we have to make sure that Ontario can apply the regulations this summer. That is why we will vote in favour of the motion.

We must also ensure that the committee's decision is applicable in practice. We need to have enough time. Let us make sure that all the players will be able to act under the circumstances.

We must shed light on this. This exceptional motion has been presented to the House today because this is not clear to everyone. We must take another stab at it. The minister must appear before the Standing Joint Committee on Scrutiny of Regulations. I would it appreciate it very much if an invitation were also sent to Ontario's minister so that we can clarify this highly important matter. It is a significant resource for Ontario and for all the provinces, including Quebec. It seems, however, that revoking subsection 36(2) would cause chaos. We will support the government's motion.

Delegated LegislationOrders of the Day

1:30 p.m.

NDP

Peter Stoffer NDP Sackville—Eastern Shore, NS

Mr. Speaker, it gives me great pleasure to debate the concerns of Bill C-52. At the outset, we in the NDP Party will be supporting Bill C-52, getting it back to the SJC committee for further debate.

The Standing Joint Committee on the Scrutiny of Regulations has been at this since 1987. I remind my Conservative colleagues that from 1987 to 1993, they were the government and they failed to do anything about this. The Liberals have continued that failure.

One of the concerns of course expressed by people is the sudden rush to get this done. One thing that cannot be accepted is the failure of government to enact concerns addressed to it by a committee, especially a joint Senate-House and standing committee.

We should not be in the pickle we are in now. The Ontario minister of natural resources, David Ramsay, should not have had to write the following words when he wrote to the Minister of Fisheries:

Without this provision, Ontario would literally have its hands tied with respect to the enforcement of a commercial fishery. It is entirely likely that the revocation of subsection 36(2) would result in chaos in this sector and threaten the sustainability of our fisheries resources.

The annual sale of commercial fishery in Ontario is estimated to be anywhere from $40 million to $50 million.

The Government of Ontario, the fishermen of Ontario and especially the resource of Ontario should not be under this type of pressure. It is unacceptable. I encourage my colleagues on all sides of the House to take a bit of a break and move on this issue very quickly so fishermen in Ontario and across the country can get on with it.

It is important to note that the NDP takes credence to this important matter. The particular bill will not provide the Minister of Fisheries and Oceans with any new powers. It will not change the way the fishery is administered or enforced in Canada.

We find this to be very important. When look at the enforcement of our fisheries regulations, to say that DFO is doing a good job in terms of enforcing the regulations across the country would be ludicrous. The reality is DFO does not do a good job of enforcing the regulations. To allow something with an unregulated fishery, as the minister has said, would put great strain on the resource and would allow rampant illegal fishing to go on with no scrutiny or enforcement. We simply cannot accept that.

As the vice-chair of the Standing Committee of Fisheries and Oceans, I find it rather incredible that the Conservative Party stands up and shows concern about enforcement, when report after report it has supported the Liberals, the Bloc and the NDP. It has screamed and yelled for more enforcement. We have said that we have to put more money and people on the ground, on the rivers, lakes and oceans and we have to enforce the Fisheries Act to protect the resource.

We have screamed and yelled for that since 1997, when I came to this place. Report after report, most of them unanimous, have screamed at four different fisheries ministers, “You have to get tougher actions on the water. You have to be stronger in enforcing the Fisheries Act”. Because of a technicality or whatever, they cannot now say that they no longer support that initiative. We find this amazing.

The ability to enforce the licence conditions is a key part of management. We agree DFO is not doing a good job of that now. However, we absolutely agree that we have to enforce the conditions of the licence set forth by the government when a commercial or aboriginal fisherman is allowed to fish under certain parameters. Our fish stocks are at an all time dangerous low in many cases. We need proper conservation measures for sustainability and economic opportunities in the future. What is most important is that the government do its job and enforce the regulations.

I could not help but notice that the Ontario Federation of Anglers & Hunters have pleaded with parliamentarians, including myself and others, to quickly pass Bill C-52 so they can get on with the job of enjoying the opportunities in recreational and commercial fishery, not only in the province of Ontario but I am sure in many provinces across the country.

I am pleased that the Bloc Québécois, although accused many times of being just a separatist party, has paid very close attention to this matter and has agreed that it should go back to the committee for further study.

I agree with my hon. colleague when she indicated that the ministers of Ontario should appear before the committee as soon as possible in order to achieve this goal.

I impress upon the Minister of Fisheries and Oceans and on future ministers again to not ignore various committees. That is why we are in this situation today. That is why the House had to open a little earlier today in order to debate this and get it through. Again, no one should have to face this pressure.

We effectively agree with Bill C-52. We know that it has to get back to the SJG for further consultation. As vice-chair of the committee, I would encourage my colleagues in the House of Commons on the fisheries committee to do what the minister has asked us to do, which is a complete review and study of the Fisheries Act. This is probably one of the few things on which I agree with him.

The act is almost 138 years old. It contains many flaws and many concerns. I agree with many of my colleagues on the committee who are very upset with the way DFO does its business. In fact, a lot of people say that the DFO is the department for oil, playing around with the acronym in that regard.

I agree that the next time the committee gets together, probably in the fall, it should review the entire act from top to bottom. That will be a very big job for the committee to do. I encourage my Conservative, Bloc and Liberal colleagues to support that. We in the NDP definitely support a complete review of the act, to overhaul it, to modernize it and to give it some teeth. I always say we should have a dentist appear before the committee so we can have more teeth in the legislation and to ensure that the government has the enforcement and financial capabilities to do its job.

We will support Bill C-52 going back to the committee. However, we want to remind the government that the NDP and I am sure others are not amused at the way business is done within DFO. We want to ensure that the regulatory acts are enforced. We want to ensure that when the government announces a particular plan or program, that there is teeth behind it, that there is resources and people power to enforce the regulations that we have.

If we do not protect the fish stocks and we do not enact the legislation that we have now to protect those stocks for future generations, it will be a very sad day in Canada indeed.

Committees of the HouseRoutine Proceedings

June 8th, 2005 / 1:35 p.m.

Liberal

Karen Redman Liberal Kitchener Centre, ON

Mr. Speaker, discussions have taken place among all parties concerning a recorded division that is scheduled to take place later today on the motion to concur in the third report of the Standing Committee on Citizenship and Immigration moved by the member for Kitchener—Waterloo. I believe that you would find consent for the following motion. I move:

That the motion to concur in the third report of the Standing Committee on Citizenship and Immigration moved by the member for Kitchener—Waterloo be deemed carried on division.

Committees of the HouseRoutine Proceedings

1:35 p.m.

The Speaker

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

Committees of the HouseRoutine Proceedings

1:35 p.m.

Some hon. members

Agreed.

(Motion agreed to)

The House resumed consideration of the motion.

Delegated LegislationOrders of the Day

1:35 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, I would seek unanimous consent to split my time with the hon. member for Scarborough—Rouge River.

Delegated LegislationOrders of the Day

1:35 p.m.

The Speaker

Is there unanimous consent that the hon. member share his 10 minutes with the hon. member for Scarborough—Rouge River?

Delegated LegislationOrders of the Day

1:35 p.m.

Some hon. members

Agreed.

Delegated LegislationOrders of the Day

1:35 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, I rise not only as chair of the Standing Committee on Fisheries and Oceans but also as a member of the Standing Joint Committee for the Scrutiny of Regulations.

I want to bring to the attention of the House the fact that we are having a very historic debate. This is the first time that we have come up with this kind of situation. That is why the House of Commons convened one hour earlier than it normally would. That is why we are going to be voting on this subject matter this evening: because of the provisions of the Standing Orders and certain sections of the Statutory Instruments Act.

This procedure has been put into place to in fact empower members of Parliament, I believe, and I think it will be demonstrated how that has come about.

The report of the Standing Joint Committee for the Scrutiny of Regulations was unanimous. That committee is composed of members of all parties of the House of Commons. It is chaired by an official opposition member and a Liberal senator. There are Liberal and Conservative senators on the committee. The committee issued a unanimous report, which was presented in both Houses of Parliament.

I want to read a few excerpts from the committee report. First of all, in a nutshell, the report stated the following:

--the Joint Committee resolves that subsection 36(2) of the Ontario Fishery Regulations, 1989, as enacted by SOR./89-93, be revoked.

The committee recommended unanimously that this particular section of the Ontario regulations be revoked. Subsection 36(2) is very simple. It states:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

That is a provision in a regulation, not a statute.

The joint committee stated as follows:

This provision was enacted with a view to making the contravention of a term or condition of a licence an offence under the Fisheries Act...

The committee went on to state:

It is accepted that regulations imposing sanctions or creating offences must be authorized by Parliament expressly or by necessary implication. Nowhere in the Fisheries Act is the making of regulations creating offences expressly authorized, nor can the existence of such a power be said to be necessarily implied.

Members have made reference to the letter from the Ontario minister in charge of fisheries. The committee was also apprised of the minister's views and dealt with them in the report which was filed with the House. I want to briefly reference what the committee said about that letter. The committee stated in regard to the proposal of the minister:

To the extent this comment suggests that disallowance of section 36(2) would impair the ability to impose terms and conditions of licences, it does not reflect a clear understanding of the nature of section 36(2). Disallowance of that section may change the manner of enforcing compliance with terms and conditions of licences, but would certainly not affect in any way the ability to impose such terms and conditions.

The committee concluded:

While your Committee understands that the federal and provincial Ministers favour the enforcement of terms and conditions of licences through fines and imprisonment rather than licence suspensions or cancellations, the Committee would be remiss in its statutory responsibility if it allowed this policy preference to override the principle that the Executive may not create offences punishable by criminal sanctions without clear authority granted by Parliament. It is the responsibility of the Executive to ask the Houses for that authority.

I agree 100% with what the committee has said.

Bill C-52 is the minister's response. It is the request of the executive to this House to give power to do what the executive wishes to do. In that way, Bill C-52 is responding to the report.

Unfortunately, a deadline has passed and if the minister's motion is not supported today, then a countdown begins, or may begin, to deem this regulation revoked, in which case there would be no regulation. This would have serious ramifications for the fishery in Ontario in the summer.

I am running out of time, but I just want to say that because of this deadline we face I am going to support the minister's motion to refer this matter back to the Standing Joint Committee for the Scrutiny of Regulations, because if the minister and the government then do not proceed with Bill C-52, the committee can bring back another report identical to this one and then not budge.

Delegated LegislationOrders of the Day

1:45 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, I want to thank the hon. member for Scarborough Southwest for his remarks. I agree with all that he has said. I want to point out that he has served on the Standing Joint Committee for the Scrutiny of Regulations for an uninterrupted 16 years. I do not know whether that is a record, but I challenge anyone to improve on it. It is certainly worth a medal.

In any event, today's matter is serious. The standing joint committee has done its work. It has found a regulation to be ultra vires, essentially illegal, and it did so for good reasons, as explained earlier. Simply stated, this House, Parliament, cannot let the public service create offences unless they have authority from Parliament to do so. Our citizens would not allow us to do this and would not want us to do this. This is the situation that has existed for historic reasons.

The fishery in Ontario and in other parts of Canada has relied on this infrastructure of enforcement, which, in the view of our committee, is not properly founded. The minister and the ministry have taken steps recently to correct that by passing legislation. In fact, the bill to correct this problem, as before the House now, has only one section in it and all it does is put into statute form what was in regulation, thereby correcting the problem the committee found.

What is not comprehensible to me is why, when the source of the problem is technical but real and the bill put forward by the minister and the ministry to correct it is technical but real, the House would not pass this bill on an expedited basis. It seems as though there are some members in the House who wish to debate the bill in a bit lengthier fashion in a way that would not allow quick passage. The net result of disallowing a regulation, which will happen within 30 days of the debate here today if we do not adopt the minister's motion, and of not getting a correcting bill in, is that the enforcement regime in the Ontario portion of the Canadian fishery would be put in jeopardy.

It is not like there cannot be terms and conditions attached to licences after this, but the enforcement regime, as it exists there now, is based on enforcement of terms and conditions of licences in an offence regime. I do not think that we in this House should be disallowing a regulation if it is going to give rise to that type of public interest problem. Only in extreme circumstances should we do that, where rights and liberties are clearly at risk.

In this case, although I stand firmly behind the report of the committee, as does my friend who spoke prior to me, and as other members of the committee would stand behind the report, we see the public interest reason in this case in referring that report back to the committee. That would have the effect of stopping the disallowance, or postponing it, I suppose, depending on what the committee chooses to do, but it would achieve the public interest objective in causing the government to fix the problem.

The fix is not in the report. The fix is in the statute, Bill C-52, which is before this House. I urge members opposite and those on this side of the House too, who may differ with me, to endorse quick passage of Bill C-52. That would solve the problem for the committee and solve the problem for the House. The government has already committed, prior to this, to undertake a comprehensive review of the Fisheries Act and its infrastructure.

I also endorse the comments of the member for Sackville--Eastern Shore on some of the bells and whistles attached to that public policy issue.

I also want to note the historic nature of the debate today. It is the first time in history that this House has debated the disallowance of a regulation under the terms in the Standing Orders and in the statute. I trust we will deal with it appropriately. I intend to support the motion, but I do not intend to put the file away forever. I am sure the minister will act in good faith to have that bill passed and I encourage members in the House to please consider that option.

Delegated LegislationOrders of the Day

1:50 p.m.

Conservative

Randy Kamp Conservative Dewdney—Alouette, BC

Mr. Speaker, it is a privilege to rise to debate Motion No. 15. I will begin by reminding my colleagues that it is Motion No. 15, not Bill C-52, that we are debating this afternoon.

We are debating the motion of the government that the resolution of the Standing Joint Committee for the Scrutiny of Regulations revoking subsection 36(2) of the Ontario Fishery Regulations not be adopted.

That regulation simply states:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

It seems to me that the question before us is pretty simple. Considering its legislative mandate, is the conclusion of the Standing Joint Committee for the Scrutiny of Regulations right? The committee concluded that:

--this provision not only lacks legal authority, but trespasses unduly on rights and liberties and represents an unusual and unexpected use of the enabling authority.

The committee concluded that it should be revoked.

Is the committee's conclusion right? If the answer to that question is no, then we need to support the motion of the government. If the answer is yes, then we need to vote against the motion. I think that is the only question before us this afternoon. The question is not “is this regulation useful?” or “is this regulation helpful?” or even “does this regulation work?”

The question is also not the following: would there be any negative consequences without this regulation?

Those are the points made by both the Ontario government and the Minister of Fisheries and Oceans and even by some of my colleagues here. In fact, as has been quoted already, the Minister of Natural Resources from Ontario has written two passionate letters on the matter before us, one to the minister and one to Conservative members.

For example, he stated:

I am extremely concerned about the serious impacts on Ontario's ability to manage and ensure the conservation of fisheries should the Standing Joint Committee for the Scrutiny of Regulations table a Report of Disallowance regarding subsection 36(2) of the Ontario Fishery Regulations.

Without this provision, Ontario would literally have its hands tied with respect to enforcement of the commercial fishery.

It is entirely likely that a revocation of subsection 36(2) would result in chaos in the sector and threaten the sustainability of our fisheries resources.

These comments are interesting, even compelling, but with all due respect to the Ontario minister and to some of my colleagues here today, they are not answering the fundamental question before us, that is, is this regulation legal? His comments might be relevant to the debate on Bill C-52, but they are not relevant to the question before us.

Is the standing joint committee right when it says the following? It states:

--this provision not only lacks legal authority, but trespasses unduly on rights and liberties and represents an unusual and unexpected use of the enabling authority.

Is the committee right when it says it should be revoked?

Are the committee members right? Is this regulation legal or not? To answer that question, we need to briefly consider the mandate of the standing joint committee. It is covered in the Statutory Instruments Act in sections 19 and 19.1. Section 19 states that every statutory instrument:

--shall stand permanently referred to any Committee of the House of Commons, of the Senate or of both Houses of Parliament that may be established for the purpose of reviewing and scrutinizing statutory instruments.

Section 19.1 states that once this is done, when the committee reviews a regulation it can make a report to the Senate and the House of Commons “containing...a resolution that all or any portion of a regulation...be revoked”. That is why we are here today.

The Standing Joint Committee for the Scrutiny of Regulations, which I also serve on, as well as serving on the fisheries and oceans committee, fleshes out that mandate a little more in its first report of October 21, 2004. It applies certain tests. The committee members are looking to see whether any regulation:

  1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;...

  2. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;...

  3. trespasses unduly on rights and liberties;

  4. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;...

  5. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;...

For almost all those criteria, the standing joint committee for years has felt that regulation 36(2) of the Ontario fishery regulations violates those criteria.

The terms or conditions of a licence is not a provision of the act or the regulation, so the violation of a term or condition does not constitute a contravention of the act. Therefore, the offence and punishment section of the Fisheries Act, section 78, does not apply.

But this provision was created with a view to making a contravention of terms and conditions a violation of the act. That is its whole reason for being there. The committee stated:

In effect, the purpose of this regulatory provision is to do indirectly what could not be done directly, namely to impose criminal liability for the breach of a term or condition of a licence.

It should seem clear to us that this is not authorized by the Fisheries Act. The committee stated:

The only purpose of section 36(2) of the Regulations is to make the non-observance of the terms and conditions of a licence, which are not legislative requirements, punishable as if they were.

Now whether we want it to be that way, the act does not allow it to be that way: “It is beyond dispute that Parliament must authorize regulations imposing sanctions or creating offences”.

The Fisheries Act does not. In fact, it does the opposite. It lists in the act those offences that are considered offences as set out in the act. The act also confers the power to make regulations providing for the suspension and cancellation of licences if someone violates the terms and conditions of a licence. That is the sanction the act currently allows the ministry to enforce.

The purpose of the regulation is to treat contraventions of licence conditions, which are administrative requirements, as if they were violations of legislative requirements. The clear and explicit enabling authority for such a provision cannot be found in the Fisheries Act in its current form.

Parliament is left with no alternative but to follow the advice of the standing joint committee and revoke this regulation. The government's motion that the standing joint committee's advice be rejected should be defeated.

Delegated LegislationOrders of the Day

1:55 p.m.

NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Mr. Speaker, I will take just a moment to indicate first of all the work of the committee dealing with this matter, the Standing Joint Committee for the Scrutiny of Regulations, of which I am a member. I am very proud to serve on this committee. It is a new committee for me and it has been a most enlightening experience, as is this debate today, a very rare debate in the history of the life of Parliament, and one that is being held today for a very good reason.

I want to remind the members of the House and the public who may be somewhat confused by the technicality of the debate at present that there is a fundamental issue at stake here. It has to do with the primacy of Parliament. It has to do with the right of Parliament, through statutes, to ensure that the laws of the land are upheld.

In this case, we have had a blatant violation of the provisions of this House and the legislative process in terms of allowing for regulations to do that which must be done through statute. It is as simple as that. It is about violations of fishing licences that must be dealt with through laws, through the law of the land, not by regulations which are not under the direct purview of Parliament. Nor have they gone through the rigorous process that legislation has.

It is clear that the committee on the scrutiny of regulations has done its job. This matter could have been handled very quickly if all parties had agreed, with a unanimous voice, to Bill C-52. The matter would have been dealt with. Unfortunately, the Conservatives blocked it. We are now at a point where we must proceed to rethink the disallowance report with the hope that this matter can be dealt with as expeditiously as possible.

Delegated LegislationOrders of the Day

1:55 p.m.

The Speaker

Order, please. It being 2 o'clock, it is my duty to interrupt the proceedings at this time and put forthwith the question on the motion now before the House.

Is it the pleasure of the House to adopt the motion?

Delegated LegislationOrders of the Day

1:55 p.m.

Some hon. members

Agreed.

Delegated LegislationOrders of the Day

1:55 p.m.

Some hon. members

No.

Delegated LegislationOrders of the Day

1:55 p.m.

The Speaker

All those in favour of the motion will please say yea.

Delegated LegislationOrders of the Day

1:55 p.m.

Some hon. members

Yea.

Delegated LegislationOrders of the Day

1:55 p.m.

The Speaker

All those opposed will please say nay.

Delegated LegislationOrders of the Day

1:55 p.m.

Some hon. members

Nay.