LCJC - Standing Committee

Legal and Constitutional Affairs

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37-1 37th Parliament, 1st Session (January 29, 2001 - September 16, 2002)
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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 10 - Evidence, September 20, 2001

OTTAWA, Thursday, September 20, 2001

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:55 a.m. to consider the proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal an Act and certain provisions that have expired, lapsed or otherwise ceased to have effect.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. I apologize for not having been here for last night's hearing; however, I am sure Senator Beaudoin did a fine job in the chair. I myself was being grilled in front of another committee.

We have before us the pro forma part of the usual report when we do miscellaneous statutes. If we want to remove some of the statutes that have been put before us, now is the time to discuss them and to decide what we want to do with any of the ones that might be controversial.

I understand that last night there was some concern about clause 5, which deals with the Atlantic Canada Opportunities Agency Act, ACOA. I am opening the floor to senators who want to discuss the clauses with which they are concerned. We will have some open debate so that our staff can begin to think about a report. If we name them and remove them from the miscellaneous statute, we should be giving reasons.

Is there any debate on clause 5?

Senator Moore: I could not be here last night because I, too, was at another committee meeting.

I have read the materials. I have concerns about clauses 5, 7 and 8. I agree with our staff report on this matter that these definitely are potentially controversial matters. I do not think this is the appropriate statute under which these matters should be amended.

The Chairman: Is there any further discussion?

Senator Andreychuk: Madam Chairman, I was at the meeting yesterday. I learned that these were not errors but, rather, changes that were difficult to put in context. Perhaps they have some merit for being here. However, I did not feel I had the kind of information I needed to make a decision and to feel comfortable.

I would like to give two examples. The first has not to do with ACOA, but with nuclear safety.

The Chairman: Perhaps we could discuss Senator Moore's point first.

Senator Andreychuk: We were told the meaning of these words in their context. Later, as a result of a discussion I had with one of the witnesses when we discussed how federal employment provisions, acts and legislation apply, it made sense. However, we did not have the full picture in advance. I found that it was potentially difficult to put these measures into a statute that deals with miscellaneous acts of Parliament. Perhaps we have to rethink how witnesses present their information to us and the material we get.

Senator Beaudoin: My hesitation was the following. We obviously give more power to a minister, a measure that may be quite right, but I do not want to discuss that. If we do that, it is potentially controversial, which is what the note is saying. We must discuss the merits of this because this would eliminate the requirement that the Governor General in Council approve agreements between the Minister of Industry and one or more of the Atlantic provinces. To me, that is material. It is a decision that is purely a correction. In my opinion, it is something new. If we all agree, and since we are a legislative house I have no problem with that. We must take into account that this is only a proposal; in due course, we will have a bill based on the proposals before us. The proposal, in my opinion, is substantial and new. However, if we think that this is what we should do, then I agree with that.

Senator Fraser: I would line up with those who, if I understand the discussion, suggest that actual changes in policy do not belong in this kind of package. In a package like this, we are supposed to be dealing with matters of a non-controversial and uncomplicated nature. Anything that involves removing parliamentary oversight, removing Parliament's discretion over the public finances, goes to the heart of public policy. This is by definition potentially controversial and should not just be lumped in with cross-references.

The Chairman: I tend to agree with you. ACOA is represented here by Suzanne Pelham Belliveau, legal counsel. Do senators want her to come to the table? We are convinced that this really is controversial and should not be included in what should merely deal with non-controversial issues.

Senator Fraser: I have no views on the merits of the changes suggested, apart from my knee-jerk reaction that parliamentary oversight is good and that lack of same is bad. The vehicle in which this change comes to us is not the appropriate vehicle.

The Chairman: The document we have before us contains proposals "to correct certain anomalies, inconsistencies, and errors and to deal with other matters of non-controversial and uncomplicated nature in the Statues of Canada and to repeal an Act and certain provisions that have expired, or lapsed or ceased to have effect."

Senator Moore: This goes way beyond that.

Senator Beaudoin: Yesterday, we set aside two groups, national capital and environment. They do not want to be included here, as I understand it. Those two were deleted at their request. If the proposal is set aside at their decision, it is probably correct; but we must realize that this is a substantial change.

The Chairman: Senators, should we remove clauses 5, 7 and 8?

Senator Fraser: There are some others.

The Chairman: We will work our way through. Are we agreed?

Senator Pearson: Many of the senators here today were not here yesterday. I should like to speak on behalf of Senator Buchanan for a moment. I know he sits on the other side. I want to put that on the record not because I want to take a position one way or the other but the others who were not here yesterday should be aware of the degree to which he supported this.

The Chairman: The general rule of thumb in the past has been that if even one senator disagrees with the inclusion it comes out.

Senator Andreychuk: Senator Buchanan was arguing that it was good policy to have this change, but I do not think he said whether this is the proper mechanism. I think that is what Senator Moore is saying. Senator Buchanan would certainly like to see this change come back in legislation, but should it be in a miscellaneous statute or on its own?

Senator Beaudoin: His opinion was clear-cut, I can tell you.

The Chairman: I gathered that.

So clauses 5, 7 and 8 come out at pages 2 and 3, under ACOA.

Senator Cools: The numbering can be confusing. Under clause 6 is a paragraph marked 8, but that is not clause 8 of this bill. It is clause 8 of the amended act. We must be clear.

The Chairman: We are dealing with the left-hand column of the document we have in front of us. I would ask honourable senators to flag those that raise a concern as we move through the document.

Clause 9 corrects an error. Clause 12 gives linguistic consistency. Clause 13 is just an error. Clauses 14 through 21 on page 6 are all linguistic consistencies and a cross-reference error.

Senator Fraser: May I have time to read the description of clause 27, which is long and complicated? I think it is okay.

The Chairman: It should be Mackenzie Valley Resource Management, but appears twice in two different forms. That is the sort of thing you really expect drafters to double-check, is it not?

Clause 28 corrects an error. Clauses 29, 30 and 31 are linguistic. Clauses 32, 33 and 34 were removed by the appropriate people before we considered them. Clause 35 deals with the Canada Film Development Corporation Act.

Senator Cools: Can we get an explanation as to why the name is being changed?

The Chairman: I do not believe there is anyone here today on that.

Senator Cools: I am just curious. The Canadian Film Development Corporation Act sounds so total and so holistic. I am wondering why it is becoming Telefilm Canada. I am just curious.

Senator Fraser: I know they have been using the name Telefilm Canada for quite a long time now. I believe this may have something to do with what I believe to be the policy that it subsidizes not only films but also television programming. That may have something to do with it. It may also be that "Telefilm" is more readily bilingual.

The Chairman: Clauses 36, 37, 38 all deal with Telefilm. Clause 42 deals with the Canadian Radio-Television and Telecommunications Act.

Page 10, clause 46, correcting errors, linguistic consistency.

Page 11.

Senator Grafstein: Is "catchy" an English word?

The Chairman: It is slang. I assume it is in the dictionary somewhere.

Senator Grafstein: This is another failure of good draftsman ship. In clauses 35 to 39, the explanation in the documents is this: "The proposed name is shorter, catchy, works in both official languages and has been used informally since 1983." If catchy is a word, it should be at least in parentheses. It is very bad draftsmanship on behalf of the drafters.

The Chairman: You will notice that our briefing from the Library of Parliament did not use the word "catchy."

Senator Grafstein: Of course not. They know better.

The Chairman: We are on page 11 of the Library of Parliament document. Clauses 51, 52, 53, non-controversial.

We come to page 12 and clause 54, the Energy Monitoring Act; and on page 13, still under Energy Monitoring Act, clause 59.

Senator Pearson: This was where we asked to have the information if in fact this review had taken place.

The Chairman: Have we somewhere here who can speak to whether this review has taken place?

Senator Cools: You are saying page 13 and page 12, clauses 59. Page 12 is clauses 42, and page 13 is clause 43.

The Chairman: I have a different copy than you. I apologize. I shall just go by the numbers, then.

Senator Pearson: We are using the document from the Library of Parliament.

Senator Cools: I am using the document itself. I apologize for using the original document.

The Chairman: I should tell you, then, that clause 59 is on page 42 of the document. No, it is the section of the act being amended. Section 42.

Senator Cools: Clause 59 is amending section 42 of the act.

The Chairman: That is right.

Senator Cools: That is on page 17.

The Chairman: This one raises the issue of whether references to a parliamentary review should ever be deleted from the act. Is this the one they say actually happened? Was it reviewed?

Senator Grafstein: On that particular note, I think a very sharp message in the report should be made to the minister responsible who allowed the Energy Monitoring Act to delete the reference to Parliament or to one house of Parliament as if it were just a question of a non-controversial, uncomplicated nature. This, to my mind, is a major problem or issue. I think it really is very careless on behalf of the minister to allow his officials to put that forward without seeking thorough review. Did this pass? Has this bill passed the other house?

The Chairman: This is not a bill. What we are dealing with here are proposals. These proposals come first to the Senate, and then after we have had a go at it they go to the House of Commons.

I apologize, the proposals go to both at the same time.

Senator Grafstein: They are dealing with this at the same time.

Senator Cools: Senator Grafstein's point is extremely pro found. I noticed that in all the discussions yesterday the officials never once referred to the minister. It was always, "the department feels." All the introductory literature says that these proposals come up from the departments. I am wondering what the role of the minister was in all of this; it makes one wonder.

For example, if we look at the front of the document ourselves, the lead document where it says "Explanatory Notes," under the description "Background," it says very clearly that "anyone may suggest amendments for possible inclusion in a set of proposals, but most of the current proposals have come from government departments or agencies."

Senator Grafstein: May I make a suggestion? I am sorry to interrupt, but it is on the same point. You will forgive me.

Senator Cools: Always.

Senator Grafstein: As I understand it, the way it works in the legislative process on the executive is that matters of this nature are funnelled through the Department of Justice or whatever and go to a committee of the cabinet chaired by a minister who in effect then refers this through. This is, in effect, an internal safeguard. I believe that that function is focused now. I may not be clear about this, but it is a committee of cabinet, and there are ministers on that committee. I think the chairman of that committee is the president of the Privy Council. We have had problems with the president of the Privy Council in the past because of his attitude towards the Senate, obviously in terms of a number of matters - and I will not go into the history - but there should be a very sharply worded reference to that committee that we should not have to take the time of this committee to review matters that may or may not be controversial unless we can receive assurances from him and his committee that it is not. We are spending time, the other house is spending time, and we have now found a number of areas that are clearly controversial.

It might be better, Madam Chairman, in these circumstances for the committee of cabinet to review this and come back with an attenuated bill. Again, I am very conscious of this and have been admonished by many of my colleagues that we are into a very difficult period in terms of very important legislation that has to go through this and other committees, and we want to give it the appropriate time, but to be caught by this and take Parliament's time and the Senate's time with this, which is obviously a misnomer, is misleading. I do not think we should have to do this work. It should it be done first by them, after which we are here to oversee whether the work is correct.

You are the chairman. You can choose to continue, but I think this is very bad practice. We receive a representation here that this is all non-controversial and uncomplicated and merely for anomalies, and some of it is, but much is not.

Senator Moore: They tried that last year.

Senator Grafstein: I leave that to you, chair, but to my mind this is not good parliamentary practice.

The Chairman: I must agree with you.

Senator Beaudoin: I am glad that this point has been raised because yesterday I asked specifically who was the final judge and was told, "It is you, the Senate committee." Now we hear that it may be a committee in the Privy Council that is really the judge. I think we should know a little bit more about that. It is true that, at the end of the day, it is here and in the House of Commons that the final judgment is made. However, on the controversy question, certainly the Privy Council or cabinet is the first judge of all this, because some are controversial and others are not. I think that most are not controversial. We are correcting errors, and we have done that for many years in this committee. However, sometimes it is new. Now, if it is the Privy Council that is deciding, we should know that. I think we must know that.

The Chairman: I believe there is someone here from Justice who, if you agree, can come to the table and go through the process just to clarify it. However, I think also we should set an example by taking out everything that is controversial.

Senator Pearson: With due respect to our researchers, it is their judgment. It is a question of our judgment. For example, when we get to the Nuclear Safety and Control Act, I think they did an extremely good job of explaining what we thought to be controversial.

Senator Cools: Perhaps we could work from the original document, rather than the researcher's summary.

The Chairman: At present I am working from both; but it is easier to follow the numbers on the other one.

Senator Fraser: I am also trying to work from both. On the matter of the judgment of what is controversial, it is true that we are the final judges. I am willing to believe that those who put this package together and viewed these as non-controversial matters. It is our job to say whether mistakes were made, if we believe they made some mistakes.

Going back to the clause that launched this particular phase of the discussion, which is section 59, it is repealing a section that refers to a review that was supposed to have occurred 13 years ago. If that review did occur, I would agree that this is non-controversial, but do we know? How can we find out if it occurred?

We have not been able to establish that, so in that case I would leave it in the controversial category.

The Chairman: We have asked the Department of Justice and we have not been able to establish. Perhaps, though, we could have the gentleman from Justice explain the process to us. Please join us at the table, sir.

Mr. Ed Schmidt, Legislative Counsel, Legislation Section, Department of Justice: Honourable senators, I am one of the two people from the Legislation Section of the Department of Justice who were charged with preparing these proposals for you.

The process by which we arrive at these proposals is that a letter goes out inviting persons, departments and others who have concerns that they feel might meet these four criteria to submit them to us. We review them. We sometimes obtain additional information. We have the difficult task, I must confess, of trying to determine what is controversial and what is not because there are many things that at first glance seem entirely uncontroversial and that may change as we explore further.

Perhaps I should state my operative definition of "controversial." My operative definition has been this: "Would parliamentarians want to debate this, or would they likely be prepared to agree unanimously to dispense with debate and pass it through." Ultimately, that is what we hope to happen with the bill that results from this, to go through without debate, with everyone unanimously giving consent to that process.

Essentially the first clearinghouse, if you will, are the drafters themselves, who consider, among other things, the report from this committee in its earlier incarnation. That committee in fact almost suggested, if I recall correctly, going a little further with what we present in miscellaneous statute law amendment proposals, which is not to be too restrictive.

The Chairman: If that were so, it was certainly long before my time.

Mr. Schmidt: To divide it into three different categories, to include in it proposals suggested by the standing joint committee for the scrutiny of regulations and other things, there was a report some years ago that tended to go in that direction. However, since then you are right, there has been a contrary movement toward more conservative proposals. As drafters, we try to balance these different proposals and make a determination.

What is considered to meet the criteria then goes to Minister Boudria for review. There is a meeting in which the proposals are discussed. Ultimately, a package results, as tabled in Parliament, for consideration by this committee and by the Commons committee. That is essentially the process by which we arrive at what is before you.

The Chairman: You really believe that removing a parliamentary review would be uncontroversial then?

Mr. Schmidt: In this context, yes. This was included because this parliamentary review, as I understand it, was linked to the existence of a committee that is passing out of existence. The preceding provisions get rid of a particular committee. The committee is the petroleum monitoring agency. My understanding is that the review that was contemplated in section 42 was probably related to the existence of that committee. In getting rid of the committee, it seems to make little sense to continue to have this provision there.

The Chairman: It is an agency, not a committee. A committee refers to parliamentarians themselves, but "agency" is something different.

Mr. Schmidt: Yes. Pardon me. Thank you for the correction. The petroleum monitoring agency, its existence being terminated, the purpose of the parliamentary review of the act in our view was linked to that. It may not be. It may be that there are things remaining in the act that warrant parliamentary review, and in that case we have been mistaken.

The Chairman: Since you cannot answer our question then, we should just take this clause 59 out.

Mr. Schmidt: The question being whether the review has taken place?

The Chairman: Yes.

Mr. Schmidt: Yes, I am sorry, I cannot answer that question.

Senator Grafstein: For some time, about a decade, I was on the statutory instruments committee. My understanding was that that committee was a parliamentary oversight committee whose purpose was to deal with regulations and statutory instruments that would be ultra vires or beyond the competence of the statutes. In other words, there was an undue delegation of power to the bureaucracy beyond the four corners of the act under which it was established. Many regulations get struck down, unless there can be a rationale for that; but it is not a broadening mandate, it is curtailing the bureaucracy from exceeding the aims and objectives of the statute through regulation.

I can understand reducing the powers of the executive in statutes, but I do not understand the analysis that you have made here as to why this would apply here. I just do not understand that analysis.

Mr. Schmidt: The comment that I made was simply to put a context to the determination of the breadth or otherwise of proposals that come before you. Incidentally, I worked at one point as counsel for that committee so I am somewhat familiar with its operations. What happens from time to time, simply by way of background, is that occasionally when a regulation is ultra vires in the view of the committee the committee suggests the amendment of the enabling provision to authorize the regulation that already exists. Sometimes there are proposals to amend the statute so that the regulation that is already in existence is authorized.

Senator Grafstein: Again, this is a weird process in a way because, in effect, it is expecting Parliament to anticipate legislation that will be non-controversial before a minister decides whether the proposal in the legislation is or is not controversial. As I understand it, it is absent a minister until Parliament comes back. Is that right?

Mr. Schmidt: In a sense.

Senator Cools: I wish to add to Senator Grafstein's question. Perhaps we should put the question another way. What is the role of the minister, or a minister, in what you have described? I think we are all pretty clear about the normal process that normal bills go through. However, in this process that you have just described, what is the role of either your minister or any other minister?

Mr. Schmidt: The Minister of Justice coordinates this process and presents these proposals, and, ultimately, sponsors a bill that results from it.

Senator Cools: Has she presented these proposals in the Commons?

Mr. Schmidt: They were tabled.

The Chairman: They go to both committees at the same time.

Senator Cools: He just said that the minister brings them, which is what I am trying to find out. They go to both committees, do they? They do not spring into committees by themselves; someone has to move them into the process. Who does all that?

Mr. Schmidt: As I understand, it is the Minister of Justice who initiates the process by tabling these proposals.

Senator Cools: It would not be tabled, then, but introduced.

Mr. Schmidt: This is not yet a bill.

Senator Cools: I know. It is a proposal. The minister is quite capable of introducing motions and proposals in the chamber. Is it introduced by the minister?

The Chairman: No, not into the chamber, not at this stage.

Senator Cools: Someone introduced this. It did not spring to us.

The Chairman: Excuse me, Senator Cools, I understand Mr. Schmidt to say that it came from Minister Boudria.

Mr. Schmidt: Both ministers are involved. It is the Minister of Justice's name that appears on the cover. Minister Boudria is involved in the internal cabinet process of vetting the proposals.

The Chairman: In effect, this is pre-study.

Senator Cools: No, it is not a pre-study because a pre-study is a bill that is already in motion and already has cabinet approval. It is not a pre-study at all. It is seeking a pre-approval. I do not think that members of the committee are that clear as to the process we are working on here.

The Chairman: We have done it before.

Having removed clause 59, we come now to the Financial Administration Act, clause 60.

Senator Andreychuk: I wish to comment on clause 59. Yesterday, we had some discussion as to whether sections about reviews should be removed from acts if the reviews have taken place. We then got into whether there had been a review or not. There seems to be a policy decision on which we might give some guidance. If the provision for a review is put in an act, it is one of the places people can go to see whether a review took place, should have taken place, or never did take place - whichever category it falls into. It is a way of tracking good governance, items and issues. Those who came before us said that this was an interesting point. For efficiency, once a review has taken place, you want to clear it off the books, so to speak, but there may be some merit in a continuance. We might want to make some comment about that in our report.

The Chairman: That is a good suggestion, as was Senator Grafstein's suggestion that from now on when drafting parliamentary reviews it should include both Houses of Parliament.

Senator Beaudoin: The explanation we gave yesterday should be in the report because it was very clear-cut.

The Chairman: Clauses 60, 61 and 62 are cross-references. Clauses 63, 64 and 65 deal with language.

Senator Cools: We have moved ahead so quickly. What did we do with clause 48? Clause 48 amends section 43 of the Crimes Against Humanity and War Crimes Act. It looks pretty substantive.

The Chairman: It changed the reference to the Export and Import Permits Act. There was a mistake that changed the word "and" to "or." This clause corrects that error.

Senator Cools: Are you satisfied, Madam Chairman? I would not mind taking a look at the act, but that is okay.

The Chairman: We are now on page 14 of the Library of Parliament document. Clauses 63, 64 and 65 deal with linguistic consistency. In referring to the Industrial Design Act, I do not believe there was any discussion. Clause 67, which deals with the Migratory Birds Convention Act, 1994, concerns linguistic consistency. Under the National Arts Centre Act, there is a minor change, one that brings the French version in line with the English.

The next clauses for our consideration are clauses 69, 70, 71 and 72.

Senator Beaudoin: That whole subject has been withdrawn.

The Chairman: No one told me that they had been withdrawn.

Clauses 72 and 73 have been withdrawn.

Senator Cools: When were they withdrawn?

Senator Fraser: Last night.

The Chairman: Last night before the committee.

Senator Cools: We are withdrawing them now, but at some point in time a vote will need to be taken to confirm this.

The Chairman: Yes.

The Chairman: Clause 74 concerns the National Energy Board Act. A portion of the act, SI-95/46, transferred control and supervision of the Canadian Coast Guard to the Minister of Fisheries, but the Minister of Transport is still the minister responsible for the Navigable Waters Act. It is not clear why the Coast Guard is involved. Was there any discussion about that last night?

Senator Moore: No.

Senator Fraser: What is that clause about? What is the appropriate authority being exercised over in this case?

The Chairman: Perhaps Mr. Schmidt can respond to that question.

Mr. Schmidt: This provision basically grows out of a change in responsibilities within government. The SI that is referenced transferred responsibility for the Canadian Coast Guard to the Department of Fisheries and Oceans. The group that played the role of appropriate authority was part of the Canadian Coast Guard. By virtue of the transfer of responsibility for the Canadian Coast Guard to the Department of Fisheries and Oceans, the reference to the minister in that section should become the Minister of Fisheries and Oceans.

Senator Fraser: This authority is being exercised over underwater pipelines? I thought I heard pipelines.

Senator Cools: No, this is control and supervision of the Coast Guard.

Senator Fraser: Over other utility lines, et cetera.

Mr. Schmidt: Yes. In other words, someone, under section 108(a) could take some administrative action; I do not recall offhand now whether it was to be an approval or a consent. The person or group who was to provide that input was part of the Canadian Coast Guard. When responsibility for the Canadian Coast Guard was transferred to the Ministry of Fisheries and Oceans, the reference to the former minister was no longer appropriate. This change reflects the internal transfer that was effected by SI/95-46, as referred to earlier.

The Chairman: I am confused, too. The Minister of Transport is responsible for navigable waters but not for the Coast Guard; right? So what on earth does this do by changing the definition of the minister?

Mr. Schmidt: It means that the same group that was responsible for these decisions -

The Chairman: What decisions?

Mr. Schmidt: Decisions made under section 108(a). I would have to refresh my own memory on that.

The Chairman: The document before us states:

"appropriate authority"

means (a) with respect to a navigable water, the Minister of Transport, and

Mr. Schmidt: I would need to spend a few moments in the file at the very least to refresh my memory on what exactly the appropriate authority does under this act, to get the entire background context. However, this action was taken under this section by personnel who were part of the Coast Guard. When responsibility for the Coast Guard was transferred to the other minister, presumably the reference to the minister should be changed, too. On exactly what that action is and its consequences under the act, I would need to refresh my own memory.

Senator Moore: Mr. Schmidt, this section deals with navigable waters, which did and still does remain under the authority of the Minister of Transport, does it not?

Mr. Schmidt: It is not a question of transferring responsibility for navigable waters. It is a question of transferring responsibility for a very particular decision on which, unfortunately, as I have said, I would need to refresh my own memory. There are many proposals here; I just simply do not remember the details of all of them.

Senator Fraser: It appears to be related to the construction of pipelines or utility lines. That is what I saw in the helpful staff document. It suggested that the reason this is an amendment to the National Energy Board Act is because the particular authority being referenced concerns, I presume, permits and approvals and whatnot for the construction of pipelines or other utility lines. That is an Energy function. I guess someone had to make the arbitrary decision that when crossing or going under navigable waters some department has authority - Energy or Transport or Fisheries. It used to be Transport and now it is Fisheries because it is the Coast Guard that actually does the work.

Senator Cools: Mr. Schmidt, is Order in Council P.C. 1995-527 transferring total authority for the control and supervi sion of the Coast Guard, or does it transfer authority only for a very narrow function at a particular point in time? That response would help the committee considerably. We do not have the relevant passages or the proposed amendments.

Mr. Schmidt: Honourable Senator Fraser is correct in her comments about the general context for this being pipelines that may cross navigable waters.

The transfer of duties effected by SI95-46 was a general transfer of the supervision of that portion of the public service in the Department of Transport known as the Canadian Coast Guard, with certain specific exceptions. The supervision of the Coast Guard as a whole, with certain specified exceptions, was transferred to the Ministry of Fisheries and Oceans.

The Chairman: Senators, I am in your hands. Should it stay or go?

Senator Cools: Go.

Senator Fraser: I think it should stay, but I would like to suggest that somewhere in the report we make the point that our difficulties with some of these changes have to do with the fact that no one seems to know what they refer to. We are not given either in the body of the document or in the briefing material available the description of what exactly we are talking about. Legislators ought to know what they are legislating.

Senator Beaudoin: It is a question of strategy. If we have real doubt, we should say no.

Senator Fraser: I suspect the substance of this is fine, but it is not right for us not to know.

Senator Beaudoin: So what is the conclusion?

Senator Pearson: My sense would be that, in this instance, since we are talking about an authority, if you do not transfer it from one minister to the other you may end up with a situation of confusion as to which minister's authority is being invoked.

Senator Fraser: The Coast Guard would be reporting back to Transport instead of to its own minister.

Senator Cools: There is no conflict. The Coast Guard has been operating successfully for several years now with the situation as it is. I assure you, they are operating by royal prerogative. I think it should proceed properly.

The Chairman: We should take it out?

Senator Cools: Yes, obviously.

The Chairman: All we need is one senator to say it goes and it goes.

Senator Cools: They have been operating like that for many years according to what we can see here.

The Chairman: Obviously, they can continue for a few more.

Clause 75 repeals a section stating that the appointment of staff with salary over a certain amount set by Governor in Council is not effected until approved by the Governor in Council. I gather there was some discussion last night.

Senator Beaudoin: The ceiling of the salary was $99,000. It is a new power.

Senator Pearson: The explanation behind it made sense to me. When this limit was originally in the act, it related to salaries of $5,000 or above. The National Film Act is a very old act.

Senator Fraser: The principle that, over some level, public representatives ought to be approving the spending of public money is a good one. That is not a non-controversial item at all.

Senator Pearson: I am just bringing in what we heard yesterday. It will come back to us in some other form.

The Chairman: If I can recall what I was told about what went on yesterday, they were suggesting that this be repealed because sometimes when you are hiring someone at that high level of salary approval by the Governor in Council might take several months, by which time the person might have gone on to another job. I would suggest that the cure for it is for approval by the Governor in Council to take place much more quickly. There should still be, I believe, oversight by the Governor in Council of salaries over $99,000.

Senator Fraser: Perhaps they need to bump up the ceiling from $99,000 to $110,000 or something; otherwise, hypotheti cally, you could have people earning $1 million a year without cabinet knowing it.

Senator Pearson: No. They said two things that are important to remember. First, none of this is new money. There is no authority here to spend money that is outside of their existing appropriation. It is not an issue of this change giving them the capacity to do that. The second was the appointment of staff. They made two points.

Senator Andreychuk: They are bound by other rules.

Senator Pearson: Yes, they are bound by Treasury Board rules, so they cannot spend more than a certain amount anyway. However, this practice is already taking place. There have only been two cases in the last 10 years where this would have been relevant.

Senator Cools: Cabinet should supervise more, not less. I think we should take it out. If you have ever worked on those tribunals, believe you me -

Senator Fraser: There should be nothing about money in a general, miscellaneous, non-controversial bill.

The Chairman: That is right, and anything that reduces parliamentary oversight on things is not non-controversial, just as a general rule of thumb.

Senator Cools: Senator Pearson is right. It is not an authority for spending here. It is a personnel-management issue. It seems to me that we should be very careful about removing any responsibility of the Governor in Council to supervise government.

The Chairman: Okay, so 75 is removed, but 76 is the same.

Senator Pearson: In this particular case, we got an extensive presentation on the reasons for these changes. We were at least an hour on this one.

Senator Fraser: Were you all satisfied with what you heard?

Senator Pearson: Yes.

Senator Fraser: Were you satisfied that public approval of spending was not being diminished?

Senator Pearson: Yes.

The Chairman: We are talking now of clauses 76 and 77, the Treasury Board approval. Senator Joyal, you were here for this discussion as well.

Senator Joyal: I was here for the previous one, too, and I share the opinion of my colleagues on the previous one.

Contrary to the previous one, which is a removal of the approval, this one means that they need to consult the Treasury Board. As such, there is maintenance of a link with the supervisory authority. Moreover, we were told that the Auditor General of Canada audits them. My feeling is that if they go beyond the advice they receive from Treasury Board there is a possibility that attention will be brought to bear on this issue.

The Chairman: There is a safeguard there?

Senator Joyal: Yes, there is still a safeguard in the system. It is not as if they would be removed completely, as in the previous one. I would be tempted to accept the proposal. The only proviso I make is that we have not heard formally from Treasury Board. We took their word when they said that Treasury Board approves of that suggestion. It is on the record, so we feel they were telling the truth.

The Chairman: I would assume so, so 76 and 77 are all right. Clause 78.

Senator Beaudoin: It is minor.

The Chairman: The first one is minor. I believe there was some concern about 21(1)(j).

Senator Pearson: I will try to explain what I heard, and others can add to it. Two important questions were raised by Senator Joyal and several others. One was the question about dictating the removal of someone. The way it was explained to us is that this is a question of responsibility. The employer is required to remove people when a certain excessive dose of radiation has been registered, and therefore it holds them responsible for that. It is not an infliction against the person's right to stay and get more radiation, so to speak. Just as people were being removed from New York last week, there are times when you must be removed from danger, whether you want to be or not. We felt satisfied that that was satisfactory.

Then the question was between those who have been exposed and those who may have been exposed. It was explained in a manner that I thought was quite good. He said that employees wear a dosimeter but that it may not register, say, the full measure of a beam of radiation that might have hit an employee's head. Therefore, the "may" is imposing once again on the authorities or management the necessity to remove when there has been some indication that an employee has been exposed to radiation. It is in the best interests, of course, of everyone that until it is determined, which is a fairly complex case, exactly how much radiation an individual has received, that you remove them, and then they get permission to return when the issue has been determined.

Senator Cools: The authority in this clause is not seeking an authority to remove but rather to order a return to work. It is quite different from what you are describing, senator.

Senator Fraser: If we read down, it also allows the commission to dictate that a person be asked not to continue in his or her work.

Senator Cools: I am at clause 78(2). From where are you reading? There is not a 78(3). Perhaps I have the wrong one.

Senator Andreychuk: We had a very long and thorough discussion. Again, I would suggest that with respect to this kind of legislation the time between hearing witnesses and taking a decision should be of sufficient duration to distribute the record, so that we are not repeating ourselves.

The Chairman: We are caught in the position of me having not been here.

Senator Andreychuk: My concern is that the explanation in the proposals before us is that the authority to require such a person to leave work is found in regulation 16 of the Radiation Protection Regulations. I am concerned that if there was no radiation, or if it had been properly dealt with as per the required process, the authority could require that person to return to work. I know that Senator Joyal worried about the removal part of it, but let us talk about the part that I am concerned about, the returning to work. Here the authority would be authorizing someone to return to work, but what about the person who has a health problem and who believes that the testing and everything still gives them worry. Does he have to go back to work?

Unfortunately, we had a very long discussion but we were not quite on the same wavelength. As we were leaving the meeting, however, I had a discussion with the witnesses, and they made a point clear to me - a point that is not on the record here - and that was that the authorization to work is just that, an authorization that an individual is cleared to return to work; it does not mandate an individual to return into where there is radiation, et cetera. The authority for employment rests with the federal employment legislation. In other words, it is basically your employer saying you are cleared to work but they cannot force you to work. In yesterday's discussion, it appeared to say if the authority cleared you, you were forced to go back in there.

If that is not the case, and what was told to me on the way out is the correct interpretation, that it is the clearance to work, but it is the federal employment legislation that still gives you the right not to have to go back in and all of that legislation clicks in, then I have no problem with this being dealt with here. Otherwise, I felt it was much more substantive.

I believe Senator Joyal had a concern, and I am not sure if the clarification I am trying to make here helps or not.

The Chairman: The witnesses are here. If honourable senators are agreed, we could call the witness back to the table to determine whether Senator Andreychuk's understanding is correct, or Senator Joyal's.

Senator Joyal: I think it is fair to give an opportunity to the witnesses who are here because it is a very important area. This matter involves health and rights. It is not just an administrative issue.

Mr. John Waddington, Director General, Environmental and Human Performance Assessment: Thank you for giving us the opportunity to correct a situation where we have obviously not fully understood the questions of the honourable senators, and I apologize for that. We were pleased to be able to provide you with the information that you need to make the decisions that you need to make.

I would like to confirm that the honourable senator's understanding of the situation is exactly correct, that the powers given to the CNSC by paragraphs 21(j) and to a designated officer in paragraph 37(2)(h) are those of authorization, not an order. The employee retains all the rights in labour legislation to refuse to go back to work should he or she not wish to - and that, of course, is a matter between the employer and employee. What it does is give the regulatory schema the process of ensuring that the appropriate safeguards have been built in to deal with whatever gave rise to this over-exposure, to ensure that all corrective actions are properly taken care of. The normal process of employee-employer relationships can continue when a full understanding of the situation is given to the employee - and that is part of the scheme - to ensure the employee has all the information that that employee needs to have in deciding for himself or herself whether he or she wishes to continue with this work. I trust that will clarify the issue.

Senator Fraser: I would like to say on the record, for the benefit of the witnesses, that it is extremely unusual for so many senators, as happened last night, not to be present at this committee. This committee's members are among the most assiduous on the Hill.

Senator Joyal: Are you looking at me?

Senator Fraser: I am looking at myself actually, but at all my colleagues. It was unusual.

Senator Cools: On that subject, chair, in the future, on our return from the summer, perhaps committees should not start to meet for two or three days. There was so much happening in the last two days, endless things, too much on the Order Paper in the Senate chamber. It was too much; we all had six or eight places we had to be yesterday.

The Chairman: We all had private member's bills.

Senator Cools: We did not need to meet yesterday; the committee could have met one day later.

Senator Joyal: I have a question along the line of the information provided by the witnesses. To your knowledge, did it happen in the past that you have authorized an employee to go back and that person has contested the safety within the environment where she or he works and that you would have been involved in a dispute settlement between the employer and employee?

Mr. Waddington: I am not aware, senator, of a situation where that has occurred. This process has been in existence for some 25 years and I cannot speak for all 25, I regret, although I have been with the agency for 25 years, I must confess. I do not know of any such situation. I do not know whether Mr. Shaver is aware, but I am not aware of any such situation. The process that we go through, which I outlined yesterday and I should not repeat, is quite a comprehensive. In discussions with employees who find themselves in this situation, most of these issues are resolved. I cannot say there has never been a situation, however; I would need to go back through the files for quite a long way to be able to fully answer your question. I cannot recollect of one, however.

Senator Andreychuk: As I now understand the situation, an employee continues in the employment and if the individual refuses to go back to work he or she would be reassigned somewhere else. Have there been cases of that?

Mr. Waddington: Yes. That is in fact quite a common situation.

Senator Andreychuk: Does the employee retain other employment rights?

Mr. Waddington: Yes. That sort of situation does occur where an employee has either received an overdose or has received close to an overdose, the situation we were discussing yesterday, and in the resolution of that the employee opts not to go back to that particular work and is reassigned by the employer into other work that does not involve exposure to radiation. That has occurred, yes.

Senator Joyal: I feel that I express the views that might be shared by my colleagues, but it is such a sensitive issue. We have been spared a major catastrophe in Canada so far, but we do not know what the future may hold. I do not want to make hypothetical scenarios, but there is no question that we must be most careful when we deal with those issues because the outcomes can be serious.

Senator Pearson: My understanding is that these minor changes are actually making the employer more responsible and giving them clearer tools for these cases.

Is that right? Does it give them a consistent protocol?

Mr. Waddington: The amendment that is proposed is simply to ensure that the legislation is consistent with what we are doing and consistent with the regulations and therefore is precisely in line with the definitions of non-controversial that you raised earlier.

The Chairman: This one stays then? Are we agreed?

Hon. Senators: Agreed.

The Chairman: Clause 79 corrects an error. Clause 80, on page 18 of the Library of Parliament document, from 80, 81, 82, 83 and 84 are all minor changes.

Clauses 85 to 99 are cross-references. That takes us to page 28. Senators can leap in here whenever they need to.

According to the Library of Parliament researcher, clause 105 at page 30 regarding the Railway Safety Act does not require a parliamentary review. The minister can appoint a committee, and he did so. There is an error in Library of Parliament document that you have before you. The proposed revision removes the review provisions of the act but it never did require a parliamentary review.

Senator Fraser: It is laid before Parliament.

The Chairman: Yes.

Senator Cools: In the interests of thoroughness, could someone tell us the section of the Railway Act that is being repealed. I am always dubious to repeal sections without knowing what they are.

Senator Fraser: Section 51. On page 31(a) of legislative document, or whatever you call it, the section being repealed is written out. That review was conducted, was it?

The Chairman: The review apparently was conducted. The minister did appoint a committee to conduct this review. The review was conducted. It was laid before Parliament.

Senator Fraser: No problem.

The Chairman: Clause 105 is all right.

Senator Fraser: Clause 106 is related to telecommunications apparatus. Is that like a faulty telephone or lines that fall down and burn a barn? If you are the farmer, it is a serious matter.

The Chairman: It certainly is. Clause 106 amends subsection 73(4) so that the authority to commence a prosecution would rest with the minister, rather than with the commission.

Senator Andreychuk: We did not deal with this at all.

Mr. Schmidt: Honourable senators, I cannot add much to the explanatory note on page 31(a). When part 4.1 was added, dealing with telecommunications apparatus, no amendment was made to the section that is the subject of the proposal. As a result, it left the authority to approve a prosecution with the CRTC, but the CRTC did not have jurisdiction over this new part. A corresponding amendment should have been there to ensure that the CRTC did not suddenly acquire prosecution veto powers or approval powers, if you want to call them that. The intention is to make an addition to this section, which should have been made when part 4.1 was added.

Senator Joyal: When was that added?

Mr. Schmidt: I do not know offhand.

The Chairman: I understand that it was in 1998.

Senator Joyal: Has there been, to your knowledge, any use of that section in the past? Has there been legal procedures involving the CRTC and its approval?

Mr. Schmidt: I have no information on whether the CRTC has ever even been asked to approve a prosecution under that provision. It was brought to our attention simply as an anomaly that ought to be corrected.

Senator Joyal: Would it be possible to get that answer?

Mr. Schmidt: I presume it would be possible to inquire of the CRTC. My only question is whether it would change your decision in any way to know whether such an instance did occur, or is this question really at the level of the structure of the act that does not depend on facts?

Senator Joyal: If litigation has been opened and is now pending with the approval of the CRTC, I would feel uneasy. If there has been no litigation, then I agree with the basic argument.

Mr. Schmidt: The requirement for approval is a punctual requirement. In other words, if it was done, it was done and it is finished. I quite doubt that there are any, but I do not know that. If there were any prosecution, my understanding legally would be that it does not matter that we now change the law because that action has been taken and is complete. It is finished.

Any new action would be done under the amended provision. There is no continuing approval. It is a one-time act. They either approve the commencement of the prosecution or not. Once it is done, it is finished, completed. Again, my encouragement is that you ask yourselves whether the factual things make any difference in this situation.

Senator Joyal: It does because, if the CRTC has refused its approval, it creates a different situation. I would prefer personally to have the information.

Mr. Schmidt: We can certainly attempt to obtain that.

The Chairman: On clause 106, we will not make any decision until we have received that information.

Senator Grafstein: In clause 108, there is a substantive difference between the French and I assume the English version. It is a matter of substance. The French version makes it clear that in order for judicial notice to be taken, it must be, in effect, certified by a person authorized by that nation, if I am reading the French correctly. Now, that is different. That then allows the courts to cross-examine. Someone comes in and certifies. The court or courts, whatever the proceedings, have an opportunity then to look at that because there is a certification. I am not clear as to whether that certification by an authorized person automatically then makes it judicial notice of law.

The Chairman: I understand from the explanatory notes on page 32(a) that that is already specified in subsection 10(6) of the act. The redundant words in section 10(6) are specified in 10(3).

Senator Grafstein: It is difficult to do that without looking at the statute itself.

Senator Beaudoin: The two things are different, there is no doubt. In French, it is much more demanding than the English text, but at the very end it states that article 10(8) sets aside those words.

Senator Grafstein: I come to the conclusion that maybe the English should conform to the French as opposed to the French conforming to the English. At the end of the day, remember that this is a very sensitive policy issue, and that is the nature of enactments by First Nations as a subordinate or parallel or commensurate authority. We have had a huge debate about that, as you recall, under the Nisga'a treaty, and in effect this is different under self-government. Parliament is still supreme. It has not resigned from its constitutional role; it has not abdicated its role. Here, without a lot of explanation, why do we have to take the English to conform to the French? The French, to my mind, leaves much more leeway in the hands of the court to determine the appropriate validity of judicial notice. I am not sure why one always has to conform French to English. Maybe the French, in this instance, is better. That is a judgment call.

The Chairman: I understand we have someone from the Department of Justice who can speak to this.

[Translation]

Mr. Luc Labelle, Legislative Counsel, Legislation Section, Department of Justice: The proposed amendment would simply address a French language drafting convention. When something is mentioned in a provision such as the example given for subsection 10(3), it is not necessary to repeat the reference in subsequent sections. That seems fairly clear. However, I have noted that there appears to be some opposition to this amendment. It merely reflects a French language drafting convention. We could certainly withdraw the proposed amendment if there are objections, but in our opinion, because of convention, we are not obliged to reiterate some of the things mentioned in previous subsections. On reading the entire provision, it seems fairly clear that we are referring to the contents of subsection 10(3).

Senator Beaudoin: The French version is more demanding than the English version, but that is...

Senator Fraser: That is the way it is.

Senator Beaudoin: ... the case from the very beginning of the provision.

Mr. Labelle: Correct.

Senator Beaudoin: What do you plan to do about it? From the outset, the French version is more demanding. Am I right?

Mr. Labelle: Yes.

Senator Beaudoin: And it is correct?

Mr. Labelle: Yes.

[English]

Senator Joyal: Can we have the text of the article?

The Chairman: The text of the article?

Senator Joyal: The opening article.

[Translation]

Mr. Labelle: I do not have the complete text of this provision handy, but I can obtain a copy of it for you.

[English]

Senator Fraser: Perhaps while waiting for information from the CRTC, we could also have made available to the committee the actual text of the full article.

[Translation]

If indeed it is already clear in both versions, then we do not need to repeat it in French. However, if both versions do not jibe -

Senator Beaudoin: That is your explanation?

Mr. Labelle: Yes.

[English]

Senator Grafstein: There are different evidentiary principles. As I read the text, it is different.

Senator Andreychuk: You are saying one is an error, but what was the legislative intent, the discretions in the French or the more limited in the English?

Senator Grafstein: It is not for us to say.

Senator Andreychuk: That is why I am asking if it should be here when there is a policy issue. Did they intend more discretion or did they not? I do not think we can second-guess the legislators. Therefore, it is not a consequential error or amend ment, et cetera. It is again in what you said was a testy area, if I understand your argument.

Senator Fraser: Clause 10(3) already requires a copy of the law certified by that person to be a true copy.

Senator Joyal: There is a legal nuance because it says that there is a common text that groups the legislation, but there is one copy that is certified, and it does not say that it is the original of the certified copy.

Senator Grafstein: Exactly.

Senator Joyal: There is a nuance between the two. In one case, it is a common ledger, if you want.

Senator Grafstein: You do not have to look behind that paper.

Senator Joyal: But there is another one that is certified.

Senator Moore: Which one?

Senator Joyal: Exactly. That is in the French.

The Chairman: Were you recommending that we remove this one, or do we ask for clarification?

Senator Joyal: I would remove it.

The Chairman: Clause 108 is out. Clause 109 is a minor change. With respect to clause 110 and the Yukon Quartz Mining Act, was there any evidence about this yesterday?

Senator Beaudoin: No. We did not find any gold.

The Chairman: Senators, what is your wish?

Mr. Schmidt, could you help us with this one?

Mr. Schmidt: Some history would be useful here. We tried to give it in a brief way in the comments. Essentially, before the statutory revision, the revised statutes of Canada of 1985, the reference in the act was to conforming with or complying with the preceding provisions, which meant everything that came before section 43 at the time. Then, in the revision, for some reason it was changed to a reference to sections 39 to 42, but there were obligations prior to section 39, earlier in that part, that were relevant. Therefore, this change made in the revision seemed to be an error. At the time, there had been no parts in the act at all. Subsequently, the act was divided into parts. Part I essentially deals with registration of claims, which is why we had suggested that be the wording - conformity with the part that deals with procedures relevant to staking claims, regarding claims, that sort of thing.

This is intended to address an error that slipped in during the revision and to restore a situation where the application of this section is to any failure to comply with the provisions that deal with recording or registering a claim.

The Chairman: Thank you. Are there any questions, senators? Then that one is okay.

Sections 111, 112, 113, 114 and 115 are all repealing the Fisheries Prices Support Act.

Senator Fraser: I do not know much about fisheries prices support. Is the board something that is already not functioning? Is it just an empty legal shell?

Mr. Schmidt: That is our information. It has not performed any function for many years.

Senator Grafstein: Again, this appears to me to be beyond the ambit of this act. This is not a conflict between pieces of legislation; this is the government deciding that there is an outstanding piece of legislation that requires appeal. That may be controversial publicly. I am not from the Maritimes, but anything dealing with fisheries I know is a flash point amongst our colleagues from any of the Maritime provinces. I am not sure that we should be even taking evidence on appealing the Fisheries Prices Support Act. Frankly, I do not care what the Department of Justice says, this is a substantive area. It was substantive going in; it is equally substantive going out, if that is the case. If the minister wishes to do this it is fine, I do not quarrel with that, but I do not think it has a place in principle in this legislation.

The Chairman: The purpose of this legislation is to repeal certain provisions that have expired or lapsed or otherwise ceased to have effect, so we need information before us as to whether they have expired, lapsed or ceased to have effect.

Senator Grafstein: It is a weird way to deal with a sunset clause.

Senator Beaudoin: My only concern would be the acquired rights because if you - et si vous abrogez une loi - you may have some problem with accorded rights, for example. Is this of no concern to you?

[Translation]

Mr. Labelle: Clauses 112 and beyond propose transitional provisions having to do with the rights of individuals appearing before the board.

[English]

Senator Beaudoin: They remain? All the accorded rights will continue.

[Translation]

Mr. Labelle: Yes, they will be continued.

Senator Beaudoin: They will not be set aside.

Mr. Labelle: No. They will be continued. These are transitional provisions.

[English]

Senator Beaudoin: Okay. I have no concern.

Senator Grafstein: I apologize. This was a malfeasance on my part since I raised this. I really was looking at something else when we dealt with section 111 and 112, but my point would be more taken starting there than here, to ask if this is the appropriate place to deal with the repeal of a statute.

As I understand it, and I appreciate what the witness has said, what they have done is they are repealing an act and then they are sensitive that there might be some ongoing responsibilities and, therefore, they are trying to preserve those rights. The issue is whether the repeal of a piece of legislation is the appropriate place for this particular act. This is more than just cleanup or conflict or so on, and I take what the witness says in effect. It is not operational and so on, and now they want to clear it out. I have no problem with that as a question of modernization and cleansing of the public statutes.

However, I am not sure that the terms of reference of this bill fit into that. It seems to me to be beyond the four corners of the stated position, which is that it appears to be controversial and non-partisan. I think the other fundamental issue is that, if it appears to be insignificant, as opposed to non-controversial, I have no problem with that, but this might be something of significance. To wash it through this way is a good way to clean house if you want to avoid public debate, frankly. I do not quarrel with that but I do not think this is the appropriate place to do that.

The Chairman: I would point out to honourable senators that in all the miscellaneous statutes, previous ones that have come before this committee, there have always been cleanup repeals in them.

Senator Joyal: The title, the Fisheries Price Support Act, is repealed. This is an important decision in principle. It is the issue of marketing. It is essentially a marketing board, like milk, wheat and agricultural products that we have in Canada. It might be a wise policy decision for the activities of the fisheries sector, but to do this without being informed of why at this stage it is a wise element of policy to do - I do not feel I have enough information to say it is just abrogating and it is abrogated, it cleans the deck. It might be a wise decision to take, but frankly I do not have the arguments before me today to say this is a decision I can take immediately. If someone said that this board was created in that year because there was a problem with this and the problem has been solved and it has been dealt with in other places, then I would understand the reasoning. However, to just erase it by a stroke of a pen, I do not feel I have enough argument to make a decision on this today.

Mr. Schmidt: I was wondering whether the committee might be open to a submission in writing. Since you are waiting for certain other submissions from us, we could invite the people who were interested in having the repeal of this act present some written explanation. Would that be of interest to the committee?

The Chairman: Yes. The process after today is that we will agree on having our staff write their report, then we will meet again to consider the report, so we will have another look at these. We will put clauses 111 to 115 on hold, as well, until we have heard more. At that point, when we are considering the report, we will consider those first.

Is that agreeable to senators?

Hon. Senators: Agreed.

The Chairman: Have you enough information now to write a report?

Senator Cools: The document that we have all been working with is laid out in three parts - explanatory notes, background and program criteria. Then there is a section called procedure.

As stated, this document was tabled - though it should say "introduced" - in the House of Commons by the Minister of Justice. The last paragraph states that the miscellaneous statute law amendment bill is prepared based on the two committee reports and containing only those proposals that were approved by both committees. It also says that passage has always been speedy given the usual understanding that the bill will receive three readings in each house without debate.

Where is that understanding? How can such an understanding exist in law?

The Chairman: I do not know how such an understanding can exist in law.

Senator Cools: You read the most incredible things in these documents. Whose understanding is this? These gentlemen prepared this document. Where did that come from?

Mr. Schmidt: That very same statement has been contained in a number of miscellaneous statute law amendment proposals over the years.

Senator Cools: Maybe we should take it out.

Mr. Schmidt: It is really intended only to reflect the special process that this bill follows in that there is a specific kind of pre-study. This is the other side of the coin of having that pre-study. This has been Parliament's own understanding over the years, but it is not a requirement obviously and we are not trying to suggest that.

The Chairman: That may have been the usual process. I would expect that when something like this comes up in the Senate chamber any senator at any time can rise.

Senator Cools: I hope there will be some very serious debate, of course. If the department has been adding that statement routinely, perhaps they can routinely take it out.

The Chairman: As we discuss the possibility of removing this last series of clauses, we must also come back to certain other clauses, including at least clauses 2, 62, 84, 99, 100 and 103. I sincerely hope the witnesses can satisfy our questions.

Senator Grafstein: On a question of policy, our discussion indicates that senators are looking at all pieces of legislation much more carefully. We cannot catch everything obviously, but there is a great desire on all sides of the Senate to look at issues more carefully and to be more sensitive to our responsibilities.

It still strikes me that we should consider, perhaps in our report, how this process takes place and whether much of this material can be cleansed even before a pre-study of this nature. This process is really a pre-study of a draft proposal of a bill. Again, from a non-controversial standpoint, I have no problem with that. It is a way of cleansing and dealing with these errors. However, if there is any indication of policy or substance, then it should be dealt with in a different way.

I cannot for the moment suggest what it is, but that means that the Department of Justice must be much more careful about that. Unfortunately, if Justice cannot deal with it our staff must spend more time. I do not think it should be required but staff time is needed to get a better focus. I am not being critical of anyone. The process is what it is. Everyone has been through the process. Enough concern has been articulated by all members here that perhaps the process itself should be examined. I leave that to you, Madam Chairman. That might be a recommendation in the report.

The Chairman: Thank you, Senator Grafstein. I understand the staff has spent quite a bit of time on it this summer.

Senator Cools: I think Senator Grafstein is saying that our report should contain a sentence on two on the fact that the process itself should be reviewed. The literature suggests it started in 1975 and, now, 25 years later, it is time we looked at it.

The Chairman: Thank you, Senator Cools, for hammering home Senator Grafstein's point.

The committee adjourned.