Evidence of meeting #70 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
To what regulations do the words "subject to any regulations" refer? Do they refer to all regulations around the world, U.S. and Canadian regulations, or strictly Canadian regulations?
Kristen Ali Counsel, Department of Justice
It would be Canadian regulation, so the reference to regulations would be Canadian.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
How can I be sure this really refers to Canadian regulations? Although Canadian law, Canadian acts, and federal acts are defined, the word "regulations" is not.
Would it not be simpler to state that the word "règlement" or its English equivalent means a Canadian regulation?
Liberal
The Chair Liberal Rob Oliphant
I think that question is more appropriately addressed to our legislative clerk, just to address how that should be written in any bill.
Philippe Méla Legislative Clerk
That is all right.
Generally, when we refer to acts or regulations in a Canadian bill, the reference is to Canadian regulations.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I know that, but this involves work done by Americans on Canadian soil. The point is simply to avoid confusion. I advanced the same argument in reference to an act of Parliament, and people constantly responded by saying what you told me.
Would it not be simpler to state in the definitions that any reference to the word "règlement" or to the word "regulations" in English means one or more regulations adopted by the Parliament of Canada? Would that weaken clause 17?
Legislative Clerk
In fact, I am not sure that adds anything. The Interpretation Act, for example, defines what an act is. The usage of the word "act" implies that it refers to a Canadian act. This, generally speaking, is how that is understood. I do not think the clarification you suggest would add anything.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Paragraph 1(b) of Article VI of the treaty reads as follows:
1. The Parties agree that only the following persons will have access to the preclearance area:
b. persons who are authorized by the Host Party in the course of the normal certification and recertification process, in consultation with the Inspecting Party;
We agree that the words "Inspecting Party" refer to an American officer, do we not?
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Imagine, for example, if Canadian certifications were invalid under U.S. regulations or an act of this kind. I am simply asking the question.
Legislative Clerk
It must be understood that this is a bilateral treaty, whereas this bill is Canadian and concerns Canadian acts and regulations. Consequently, there is no possible confusion as to what applies. These are always Canadian acts and regulations. If there is any confusion, it is elsewhere and not here because every bill of the Parliament of Canada concerns Canadian acts and regulations.
Liberal
The Chair Liberal Rob Oliphant
I'm going to turn to Mr. Nesbitt to see if he has anything he wants to add to that discussion.
Scott Nesbitt Senior Counsel, Department of Justice
The only part I would add is that where the bill does mean to refer to American laws, like U.S. laws or regulations, it does expressly refer to laws of the United States. For example, if you look at subclause 10(1), the reference there is to the laws of the United States.
Just to emphasize the point that's already been made, any general reference to an act is to a federal act of Parliament or regulation, and where it's meant to be an American law, it, in fact, refers expressly to laws of the United States.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
My concern stems from the fact that the English version states "to any regulations".
In my opinion, that paragraph could be interpreted as potentially including regulations other than those of Canada, but I may be mistaken.
I understand the legislative clerk's interpretation of the French phrase, but I find the words "to any regulations" somewhat troubling. Perhaps the word "any" should be deleted; I do not know. In any case, I am suggesting the idea.
Liberal
The Chair Liberal Rob Oliphant
What I'm hearing from the Department of Justice officials, as well as our legislative clerk, is that the convention in Canadian law is to not specify that, because if we start to specify it once, we may need to specify it always. We're following a convention.
Am I correct on that?
Liberal
The Chair Liberal Rob Oliphant
Okay.
I have Monsieur Picard, Madam Damoff, and Mr. Spengemann.
Monsieur Picard.
Liberal
Michel Picard Liberal Montarville, QC
The proposed amendment concerns safety in marine transportation. If the amendment had been necessary, the same thing would have had to be done for all modes of transportation under the general agreement between Canada and the United States.
Ms. Wherrett noted that paragraphs 17(d) and (e) covered all modes of transportation. We have no reason to believe that storage terminals for railway transportation will operate in the same way as those for marine transportation in the very near future. There will be the same facilities for marine and rail transportation.
The fact that this is incomplete is offset by the fact that the bill concerns all modes of transportation.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, not to belabour the point, but I am tempted to side with Mr. Arseneault on one point, and it's the differential between paragraph 17(d) and paragraph 17(e). If you look at paragraph 17(d), in English, you see that the language is “or by regulation”. That's understood, in Canadian statutory interpretations, to mean the body of Canadian regulation or its process.
The drafters then moved to a very different way of framing it in paragraph 17(e), which is “any regulations”, the plural. I think that was the concern Mr. Arseneault had: that it's potentially U.S. regulations. In that sense, “any regulations” really could be construed as American regulations, and there might be a concern in terms of judicial efficiency to clarify that in the legislation to prevent litigation of that point or any kind of future judicial inefficiencies without having that clarity.
My question, I think, is to you as a professional in the Canadian public service. Why is there that discrepancy between “by regulation”, which is well understood, and “any regulations”, plural, which is a much less common term?
Legislative Clerk
Where in paragraph 17(d) it says “by the Minister under section 45 or by regulation”, it's something that's going to be made by the use of a regulation or more, but it's the use of the regulation. In paragraph 17(e), under “subject to any regulations”, you have no choice other than to put an “s” there. It's “any” of the Canadian “regulations”.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Equally, we could have said “subject to regulation” and kept the same language as in paragraph 17(d). There's a divergence from what they've said in the previous paragraph that may lead one to suggest that they may import foreign regulations. If the U.S., by regulation, wanted to keep somebody out of that pre-clearance area in another country, they could do it through that....