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:
is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;...
imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;...
trespasses unduly on rights and liberties;
makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;...
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.