Justice Committee on Oct. 21st, 2010

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 10 as amended agreed to)

(Clauses 11 and 12 agreed to)

[The Chair, Conservative, Ed Fast]

When we get to clause 13, there is a Liberal amendment.

Mr. Murphy, I believe that's yours as well, if you would introduce it.

(On clause 13—Regulations)

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, I was carrying Derek's message on this.

I realize it's a bit odd to have the power to make regulations stunted like this, but I think Mr. Lee brought up some points that worried us: that perhaps paragraph 13(f), which is the general or the catch-all provision that's effectively being proposed for deletion here, might provide too much scope to provide by regulation the creation of a criminal offence, when we want to be very careful about what we're creating here.

I want, if I may, to ask the departmental officials to tell us how many acts like this, in which there is a section for regulations, don't have a general catch-all. Has it ever happened before?

[The Chair, Conservative, Ed Fast]

Ms. Kane.

[Catherine Kane]

We can give you some examples.

Is your question whether there are acts that don't have that kind of provision or acts that do?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, in acts that call for the promulgation of regulations by Governor in Council to shepherd the act to its intentions, when that happens usually they're specific—you know: “We will make regulations for specific aspects”—which is very clear from paragraphs (a) through (e) of clause 13. Those are very specific and unobjectionable; there's no way they could overstep the bounds of the act. But I think....

I served on the scrutiny of regulations committee for a year, a fascinating committee—

[Some hon. members]

Oh, oh!

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Why are people laughing at that? That's an amazing committee, because it shows you the power of regulations, and I think we have to be watchdogs concerning them—rendering homage to Derek Lee, who's been here 22 years, I think he said earlier.

If we took this out, I think it would be okay with me, because there's quite a bit of power in paragraphs (a) through (e).

So my question was does every act that has a subsection saying that regulations may be brought forward have the catch-all, which is the one I'm trying to get rid of?

[Catherine Kane]

I couldn't say whether every act has, but I could direct you to, for example, the Fisheries Act and the Environmental Protection Act—and we can provide you with copies of those—which have very similar provisions to paragraph (f), which is a more general clause.

I would also mention for your consideration that this provision is circumscribed in some way, because it says it's “for carrying out the purposes and provisions of this Act”. It's not a wide-open power to make regulations; it's only with respect to the provisions of this act. So wherever there are provisions in the act that don't refer to what's going to be set out in regulations, it's not going happen.

Regarding the concerns that were raised the other day about whether this could create new criminal offences, the Minister of Justice made it very clear that it would not happen. The regulation power is derived from this statute, and the purposes of this act are for the mandatory reporting of child pornography. So the regulations are going to deal with the agency that will receive those tips, the way the reporting is to occur, and so on.

This last provision is in case some of those other things aren't specific enough to cover the circumstances that arise. But it's not an invitation to change the purposes or the provisions of this act through regulations.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Just to take you on a bit on that, I find paragraphs (a) through (e) of clause 13 extremely specific and encompassing the act. I can't imagine other aspects. There's quite a regulatory power to make the proper regulations for reporting, notification, security, etc. I'm happy with (a) through (e).

I'd be happy to hear other members' comments.

[The Chair, Conservative, Ed Fast]

Right now we have Monsieur Ménard, then Ms. Jennings, and then Mr. Woodworth.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would like to know whether the translation of paragraph 13(f) is standard, whether it is in common use in federal regulations. It seems to me that there is a difference between the English text and the French text. To the extent that I understand the English text, it is clear. The French text is more vague, in that it says the Governor in Council may, “par règlement ... prendre toute autre mesure d'application de la présente loi”. When it says “mesure d'application de la loi,” it's undoubtedly talking about regulations, but it can also mean other things.

But if that is the standard way of writing federal legislation, because I imagine these expressions are in common use in federal legislation, and the translation is always the same, then it's wise for it to be the same in all legislation. But I find it surprising, because this is the first time I have noticed this kind of difference between the two versions of this clause, which is probably common to a lot of legislation.

[Catherine Kane]

My colleague has noted that the Canadian Environmental Protection Act, which has a similar provision in English, uses exactly that terminology en français.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I understand that in the Canadian Environmental Protection Act, the expression “toute autre mesure” has a general meaning and it's not just that regulations can be made, because the intention is to take other measures as well.

But here, it seems the only power that is intended to be given, generally speaking, is the power to make regulations. The word “mesure” in French does not necessarily mean just regulations, while in English, clearly, it refers only to regulations.

I understand that there would be measures in the Canadian Environmental Protection Act, because of the nature of the subject matter. The translators really are the experts. In my opinion, the translators at the Department of Justice are the best in the world in terms of translating from French to English, so they could certainly tell us.

[Catherine Kane]

The legislation isn't translated from one language to the other. Two versions of the legislation are drafted simultaneously, one in English and one in French, so it's not always an exact word-for-word translation. It's for the meaning and the content, so that the section flows. The comment I made earlier was only to note that this particular term is used quite often in the French-language version to convey the same notion: that for the purposes of carrying out the act, other regulations can be made. It's not to change the content of the act.

We all need to bear in mind as well that regulation-making power isn't a law-making power in the same way as Parliament would proceed with this bill. The regulations have to draw from this bill; the authority to make them has to be found in this bill, and they have to be for the purposes of the act as enacted by Parliament.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Given that I, like Mr. Lee and Mr. Murphy, have sat on the committee for the scrutiny of regulations, and that I'm now again on scrutiny of the regulations, I do have a very lively interest in the issue of regulations and the authority upon which to adopt regulations. I am cognizant of the fact that there are a number of pieces of legislation that do have that catch-all phrase. Therefore, I would like you to give us some concrete examples of legislation--for instance, you talked about the fisheries and the environment--that has the catch-all phrase that the Governor in Council may make regulations generally for carrying out the purposes and provisions of this act. Do you have examples of using that Governor in Council catch-all phrase to make a regulation that went through scrutiny and was found to come within the scope of the law and the authority of the law, etc., and wasn't ultra vires?

Do you have an example? That's our concern: where has it actually been used, and been used correctly, and not been found to be beyond the bounds or the scope of the enabling legislation, la loi habilitante? Do you have an example?

[Catherine Kane]

I don't have an example with me today of a piece of legislation, another federal statute, that has that provision and that also has regulations that have been enacted and have gone to the committee--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I mean under that specific provision.

[Catherine Kane]

I don't have that with me today, and I don't know how easy it would be to determine what the Standing Joint Committee for the Scrutiny of Regulations has looked at, but subject to not stalling this bill, we could discuss with our drafters what regulations, in their experience, have been enacted under other federal statutes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'm going to interrupt you right there, Ms. Kane. I do not appreciate your use of the term “other than stalling” or “outside of stalling this bill”--

[Catherine Kane]

I'm sorry. I apologize--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I do not believe that any member on this committee dealing with this particular legislation or any other legislation that comes before us, whether it comes from the government or from an individual member, is interested in or has a goal of stalling legislation. When we ask questions, our questions are based on good faith. We are attempting, especially in the case of this legislation.... I think every member sitting around this table has made it very clear that we welcome this piece of legislation. We see it as a good step in the right direction. It is clearly not the answer-all and be-all to everything, but it is definitely a step in the right direction, and now our concern is not to stall it, but to get some clarification.

I understand that you may not have come here prepared for the question that I have asked or for the point that my colleague raised, and therefore the simple response would be “Yes, they do exist; yes, there have been cases in which regulations have been adopted under a provision like that under other legislation. I do not have the examples with me”, and leave it at that.

[Catherine Kane]

Yes, I apologize. It was an inappropriate use of language. I had heard you indicate earlier that you wanted to move ahead with the bill.