Mr. Speaker, I am rising as the Commons co-chair of the Standing Joint Committee on Scrutiny of Regulations. The committee has representation from all political parties. It has eminent members on it who have more than 10 years of experience. They have been there from the beginning. Since 1989 some of the Commons and Senate members have watched this file and have provided the committee with guidance.
The member should also know that the Standing Joint Committee on the Scrutiny of Regulations also has a team of legal counsel to guide us, to do the research and to provide us with the assistance that we need to do an appropriate review as authorized by Parliament.
I want to remind the House that the role of the Standing Joint Committee on Scrutiny of Regulations is to ensure that the regulations to any act of Parliament are enabled in the legislation. In other words, if the legislation does not permit it, a regulation cannot take the place. It cannot legislate. If there is a regulation that is not enabled by the act itself, that regulation is illegal and inoperative and will not stand up in the courts.
That is the problem. The intent is to do indirectly what cannot be done directly, namely to impose criminal liability for the breach of a term or condition of a licence which is not legislation.
In adopting the fourth report, the standing committee has concluded that the provision not only lacks legal authority, but also trespasses unduly on rights and liberties, represents an unusual and an unexpected use of the enabling authority and makes the rights and liberties of a person unduly dependent upon administrative discretion.
Regulations imposing sanctions or creating offences must be authorized by Parliament expressly or by necessary implication. No where in the Fisheries Act is the making of regulations creating offences expressly authorized.
There is a fundamental distinction in law between the exercise of legislative power and the exercise of administrative power. Under our system of law and government it is generally accepted that criminal sanctions attach only to the contraventions of the requirement that is established by legislation. A licence, however, is an administrative document. It is not legislation.