TRAN Committee Meeting

     Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number seven.

    Orders of the day: pursuant to the order of reference of Friday, February 13, 2009, Bill C-9, an act to amend the Transportation of Dangerous Goods Act, 1992.

    We do have some amendments that are going to come forward, and we do have some guests who are joining us to hopefully steer us through. Rather than trust my spelling and my pronunciation, I'll just have you introduce yourselves across the table, please, and then we'll proceed with clause-by-clause.

    I'm Jacques Savard, director of regulatory affairs with the Transportation of Dangerous Goods Directorate.

    I'm Marie-France Dagenais, director general, Transportation of Dangerous Goods Directorate.

    I'm Peter Coyles, special advisor to the director general for Transportation of Dangerous Goods Directorate.

    I'm Linda Wilson, legal counsel.

    Thank you, and welcome. Hopefully, you'll be able to assist us in this process.

    As decided at the last meeting, we'll proceed with clause-by-clause consideration. I'll start by calling clause 1.

    (Clause 1 agreed to)

    I have notice of an amendment to clause 2, from the government side. It's one you just got; it should be in front of you. The motion is that Bill C-9 in clause 2 be amended by adding, in the French version only, line 7 on page 4, the words

    “...à leur entrée au Canada...“

     “...expédition qui les accompagne à leur entrée au Canada comme étant...” 

    I need a person to move it. Mr. Jean moves it.

    Yes, sir, it simply brings in the English to the French.

    Monsieur Laframboise.

    Just a moment, you are going faster than I am.

    We're on line 7, page 4, and the words à leur entrée au Canada. We would be adding that to the phrase.

    What would those words replace?

    Actually, they would be added.

    My understanding, if I may, once you've had an opportunity, Mr. Gaudet....

    It is clause 2, page 4.

    My understanding, if I may, is that the government's position is that entry into Canada, although some jurilinguists believe the notion of entry into Canada is implied in the French text.... They did that to bring it into consistency and to clarify the provision to ensure the Canadian courts give the same interpretation in French and English.

    My problem is that I have the version from the package. I cannot find the reference. I am having a lot of trouble. Is there another version? I am on page 4 all right, but, for me, it is line 5.

    It's been moved by Mr. Jean that we make the amendment indicated to clause 2.

    (Amendment agreed to)

    (Clause 2 as amended agreed to)

    (Clauses 3 and 4 agreed to)

    (On clause 5—Prohibition)

    The Chair: On clause 5, we have an amendment. It will be NDP amendment number 1.

    Mr. Bevington, you have two amendments pertaining to this particular clause. We have numbered them NDP-1 and NDP-2. For you, the choice would be as to which one you would like to introduce first.

    Mr. Chair, I guess I'd introduce NDP-1 first.

    Okay, that's good. We've marked it that way, but it may not be the way you wanted it presented.

    You can move it and tell us why.

    I'd like to move this amendment to clause 5. The amendment will clearly lay out the purposes that I've heard this act has been brought forward to deal with: the issue of international requirements for transportation security clearances. That's why the government has brought forward this bill: for amendments to transportation security clearances. That's how it's been presented.

    This amendment simply ensures that this will be the purpose of the bill and that it won't be used for any other purpose and for any other further additions. If the government wants to come forward with further transportation security clearance requirements for Canadians within the country, they'll have to put forward another bill.

    If, as the minister clearly has said, this is the purpose of the transportation security clearance being requested, then this amendment will ensure that this is what this bill will do and what this law will accomplish.

    Thank you.

    Mr. Jean.

    Could I have clarification, first of all from Mr. Bevington and then afterwards from the department?

    Specifically, are you suggesting, then, that persons who transport nitroglycerine, or large quantities of chlorine, or things like that, will not have to get security clearances of any kind?

    Those people are already licensed in Canada.

    So they would not be subject to this, as long as—

    They would not be subject to this. The purpose of this bill was quite clearly laid out by the minister, and this amendment will just ensure that the bill follows the intent of the minister as detailed to us.

    I would like to hear from the department.

    For us, this provision is basically a part of a bigger security prevention program. It's true that our first intention is to deal with cross-border transport, but I think it's important that we get the authority to require that people transporting very dangerous goods in very large quantities be required to have a security clearance. Not only that; we understand that they are licensed, but under the Transport of Dangerous Goods Act, there's no review of their background, and we need to do this.

    Are there comments?

    Monsieur Laframboise.

    That is the question I asked last time. This section applies to all international transport to the United States and to interprovincial transport. Are truckers going to be ready to get their clearance the moment this goes into effect? The answer I was given was no, it would take about two years before it could be made applicable to everyone. Is that true?

    Certainly, we are going to have to have regulations for both national and international levels. There will be some delay, but that is what will happen one day. We have not yet determined, on a national scale, the people to whom the requirement for security clearance would apply. But we want to keep this power in case it were decided that people transporting explosives must have a security clearance. We want to keep the door open, but no policy, no regulations and no firm positions are in place.

    Transports Québec has told us that they have no problem with the bill. So I am inclined to support it. But are the provinces aware that interprovincial trucking is going to come about at some stage?

    The provinces have been consulted. They have read the bill and have all agreed. They know our approach very well. The Minister's committee has said that, at some stage, emergency plans will be necessary for dangerous goods. That being the case, we wanted security clearances ready to be issued in the near future.

    For some materials, you could decide...

    For some dangerous goods...

    Right, for some goods, you could put different regulations in place for interprovincial transport.

    We are talking about the more dangerous goods like explosives, propane, chlorine, as well as radioactive and infectious material, but in very significant quantities.

     Mr. Volpe.

    I want to get a little clarification on that. In the first instance, I guess what we want to do is harmonize the expectations of, in this instance, the United States with those of Canada.

    I can see why Mr. Bevington has asked this question. In an environment where we have people who are anxious to keep their jobs, what kind of constraints will this put on those who are already employed in the transport of dangerous goods without a transportation security clearance? Do we have an estimate of how many might be affected and how much time those people would have to address the obstacle that will be presented by this legislation?

    Indirectly, nobody will be impacted until you make regulations. So anybody who's employed currently would continue to be employed, and there's no requirement for a security clearance. There would be no requirement—

    Excuse me, Mr. Coyle. Are you saying that we're going to “red circle” anybody who's currently—

    No, what I'm saying is that currently.... If you look at the proposed act, it's an enabling authority. You would have to bring regulation. That regulation needs to be considered in consultation with the provinces, the territories, and industry before you could apply any constrictions. Having enabling authority doesn't mean you can actually do anything, until you have brought the regulations forward.

    If you look at the numbers, Statistics Canada says there are 264,000 truck drivers, and out of that number, maybe 10% transport dangerous goods. That's the estimate from Statistics Canada. We do not have concrete numbers, as individuals flow in and out of transporting dangerous goods. I may transport dangerous goods today in a truck, but I may not do it again for another five years.

    But we heard the other day, and I'm sure you followed this as well, that people who have what some refer to as minor light drugs offences would not pass the test. If you're looking at the number you just gave me as an approximate figure, it would suggest that about 26,000—give or take a thousand—would probably fit under the category of those who would not be able to continue their work.

     The notion of security clearance and the way the department has handled it has been that it has been a security difficulty or problem or a security notion related to what type of work you're doing. So if you unfortunately have some issues at home and you do some bad things at home, that does not necessarily make you a security risk for being a truck driver. Therefore, not all criminal references in your background are necessarily going to determine if you get an assessment or a clearance or not.

    Now I feel uncomfortable as a citizen. Sincerely, Mr. Coyles, I do feel uncomfortable, because if somebody has a criminal record it tells me as a citizen that the state is anxious to make sure I'm protected from that individual's activities. If that individual is transporting--to use the parliamentary secretary's phrase--nitroglycerine, I just became nervous.

    In fairness, sir, as an example, if I am a wife beater, it may have nothing to do with my transporting dangerous goods. Although it can make us all uncomfortable, and it may not be a person in society that we may be around this table, it may not have a direct application in relation to transportation security. That's the example I was trying to bring forward.

    Mr. Coyles, I think a criminal record is nothing more than a public recognition of somebody's state of mind and psychological preparedness to commit something that goes against the convention. I don't want to belabour the point, but it strikes me that a wife beater probably goes against the acceptable conventions of the day. That tells me that psychologically somebody has already defined this individual as someone who is prepared to go against the conventions, whatever they might be, to address it as something that happens at home, inter nos, but has no impact on somebody else. I think that puts to one side the mental preparedness of somebody to address goods like nitroglycerine and others we would identify as dangerous goods. That's why I feel uncomfortable.

    Maybe I can help you feel more comfortable, in the sense that history has shown that those transporting dangerous goods are usually the better of the truck drivers, for example. You gravitate toward looking at all kinds of things in relation to moving your goods. Dupont, for example: if you look at price considerations and other things, it's 17 on a list of 18 things they consider. So many things are above looking at who you choose as your carrier, especially under programs like responsible care and others where they're really looking at understanding the risks associated with the transport of dangerous goods. The public risk that's associated with that is therefore determined on who they're hiring and who they're bringing in to do that type of work. Most likely we won't have these types of individuals working in this type of industry.

    As you say, you've not yet done the consultation for establishing the regulations on the enabling part of the legislation.

    No.

    There have been other committees--I'm not sure this is one of them--in other parliaments that have asked for a review of those regulations before they're proclaimed. Is it your intention to sound and consult with this committee prior to the promulgation of those regulations?

    We could do that. I understand that was part of a proposed amendment.

    But that amendment hasn't been passed yet. So I'm just wondering whether I should interpret what you just said as a very firm yes.

    It does have an impact on the way we do business, definitely. We do consult regularly with the industry, our stakeholders, the provinces and territories. Already in the current bill section 30 does have this process established, so we do consult. We don't think it's necessary to go through another committee to do so, but it's something we'll--

    This committee would be a good one to go to. It's sort of a Gallic yes, right?

    Thanks.

    Mr. Kennedy.

    I am going to follow the same lines as Mr. Laframboise.

    Is a permit needed just to transport gasoline or diesel? Is that what our neighbours usually do?

     Are we going to put people who do dangerous goods, but just for everyday purposes, under this law? Is that what we're doing?

    That's not our initial intention. But as I say, it all has to go to safety and security.

    One of the incidents that often happen concerns fuel tankers. Definitely, this is one of our.... What we're trying to do here is identify, at a certain point down the road, if there are certain goods, very dangerous goods being transported in various quantities, but bigger quantities that could be dangerous to society. We're trying to make sure the people who transport these kinds of goods have gone through a security clearance.

    I'm sorry that this is something I don't already know, but there are already provincial licensing regimes and they often include dangerous goods requirements and so on. So what would we be adding?

    Right now you need a driver's licence to transport dangerous goods and training in relation to dangerous goods. But there's nothing in relation to security.

    With your indulgence, Mr. Chair, in terms of security versus safety.... On the security component, if somebody is delivering heating fuel, what's the security concern we have, as opposed to the safety concern, for somebody who goes into neighbourhoods and delivers heating fuel? Is it that he would misappropriate or misuse the dangerous material in some fashion?

    Correct. It's verifying that the individual at the helm of the vehicle, or the transportation worker, as the act reads, is an appropriate individual to deal with this type of equipment, so that they don't use it as a weapon of mass destruction.

    Which has been done recently in Quebec.

    I understand. I wanted the appropriate word. We are talking back to Mr. Volpe's question. Some tens of thousands of people across the country, in terms of whether that's actually.... When you think of all the bulk distributorships that exist in every community.... It happens to be my family business—I just wanted to declare that, in case there was a conflict in this question. Basically, I just wonder about the practicality of giving the minister that broad amount of permissive power, of which there is no further constraint except the regulatory process, correct?

    Correct. But the regulatory process, as I say, goes through very rigorous consultation. We will be made aware of any problems or comments, and we'll take them into consideration, as we always do.

    Yes. Just so we're clear on what we're doing, ultimately the minister has that broader right.

    Yes.

    Mr. Bevington.

     Really, when we talk about those within the country who could be required for a transportation security clearance, it's not simply drivers, but those who handle or transport dangerous goods. It could be people in warehouses. A whole variety of people could fit under this bill. It is fairly large in scope as it stands.

    Of course we had evidence as well from the Trucking Association that they would like to see a single transportation security clearance. So what we're going to see in this country is if that pattern that's being put forward under this bill follows, we would have a single transportation security clearance decided by the requirements we have for transporting into the United States. That, to me, seems to be out of line.

    We heard evidence too that much of the transportation security clearance is around the criminal record check, whereas if you look at the incidents of terrorism in North America, perhaps in the rest of the world, very few of those, if any, were people who would have been identified with a criminal records check.

    We're looking at a system that really may not even fill the bill, but we're going to give authority to the minister to extend this right through the whole transportation column where it comes into contact with dangerous goods. And you know most warehouses are not assigned simply for dangerous goods. Most trucking companies transport a variety of goods, sometimes dangerous goods, sometimes not. So we're going to see this entering much of the transportation industry if we don't look at how we can ensure this broad power being granted here can be limited.

    When it comes to Canada, further on in this bill we're looking for anyone who's handling dangerous goods to provide a security plan. So the company is responsible for laying out exactly how it's going to provide security for the work it's doing. Of course, if a company is providing security, a great deal of the security will be its understanding of its own employees. So at another level within Canada we will have a system that will ensure the companies themselves will be responsible to ensure their employees meet a security level they institute under a security plan that will be reviewed by the department.

    In reality, we're covered for security clearance for people in our country dealing with our own goods, because we have that under the security plan. We have the ability to lay out the requirements for the company to operate moving dangerous goods through a security plan. So we don't need the security clearance for people in our country, we can do it through another method.

    By limiting it to what was projected for the bill, which was to deal with the issue of security clearances for international travel, we've also got it covered under the bill. Even with the amendment, the government will have the ability to ensure that security is held for Canadians and under a security regime that may be more appropriate to the goods they're handling in Canada, to the situation that exists in Canada. If you're handling nitroglycerine in Canada, I would assume the company that's handling it, in order to get insurance, will have to have a security plan that will outline what kinds of clearances its employees will go through, but if you're a farmer moving ammonia around the countryside, you won't necessarily have to meet the international transportation security clearance requirements.

    Quite clearly, there are provisions within the bill to cover what has to be done in Canada. The transportation security clearances were designed to deal with the issue that we have internationally.

    So the amendment will very much clarify that, and will continue to ensure that Canadian companies and Canadian workers are not unduly harassed by this government in the conduct of their work across this country. The amendment will maintain that. We have the ability to deal with individual companies within Canada, and we have the international commitment that we want.

     I think the amendment is very practical. It simply brings it down to a scope such that we, as legislators, as protectors of the rights of Canadians and as protectors of our essential economic system here, will do our job.

    Monsieur Laframboise.

    Unlike Mr. Bevington, I wonder about that. Safety is safety. We have to make sure that transporting dangerous goods is safe. I prefer Mr. Volpe's amendment, which will allow us to examine the regulations when they are available. That will allow us to ask the appropriate questions. Personally, I am going to vote against the amendment.

    Thank you.

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: We go to amendment NDP-2.

    Mr. Bevington.

    This amendment ensures that information collected by our government on Canadian citizens is not shared with any other foreign government. Once again, it simply puts into the act things to protect Canadians; that's the purpose here. If the government has no intention of sharing anyone else's information, I don't see how this amendment would pose any particular degree of difficulty to anyone here.

    Mr. Volpe.

    This is a question for Mr. Coyles or Ms. Wilson.

    My understanding is that an item like this would be covered under the privacy legislation anyway. If I'm wrong, please disabuse me of my misperception.

    There are two things. Number one, yes. Also, the requirement for sharing information is limited to when an applicant applies. For example, if they're a new arrival in Canada and want to get a job and need a security clearance for that, there is a requirement to show some type of history, at which point there will be some work between the department and the applicant to understand what that applicant has provided as information. We may need to go to another country to seek out information. There may be a police record check that needs to come from another country, and there may be elders' letters, or whatever, depending upon the country of origin.

    This would prohibit us from being able to go out with the consent of that individual and share any information, whose consent we must have prior to sharing information under the Privacy Act, as is included in the application form, etc. If we are not able to share any information, then that individual would not be able to be considered. That's its impact.

    So when an individual is crossing the border and the officials on the other side of the border, the customs, excise, or immigration officials, ask for particular information that may not have been included in the FAST program, and which may be consistent with the requirements of the U.S. authorities for homeland security purposes and which they expected would have been part of the licensing process, does our driver have to wait until Transport Canada advises the American authorities that the driver is in possession of a clearance? Or do they share the information?

     Right now, if they receive a FAST card clearance, they have access to the United States marketplace. The example I was trying to provide is of a case in which, if I arrive from any country in the world and am recent in Canada, and after a year or two in this country decide I want to be a truck driver who transports dangerous goods and want to apply for a security clearance—one to replace the FAST card through enablers in this bill—then I would need to provide some history. That history is outside of Canada, and it is this that we would have to be able to share to understand that applicant's time in another country. We would need to perhaps go to that other country and ask for a police record, or an elder's letter, or whatever it is that is needed to fill out the application form. It is at that time that there is a sharing of information.

    However, once the person has the clearance, the intent is that the clearance enables them to go across the border, and there would be not this notion of CBSA or the American counterpart suggesting that they want more information.

    I was a tourist in my previous life in another department, which used to require all that information in order to grant the PR card, the permanent residency card. Are you asking for something more than that?

    I'm not familiar with that PR card, but what we are looking at—

    Well, you can't stay here unless you get clearance as a bona fide individual someplace else. If you have a criminal record someplace else, you're not allowed into the country.

    Exactly. You wouldn't be able to get the clearance, therefore.

     I don't mean to put you on the spot. That's why I said maybe Ms. Wilson can answer part of the question.

    Last week we had two groups of people who were specifically concerned in their business with security issues. One of the groups represented a company that did some pre-checking for all individuals through a fingerprinting process. In your view, would this particular clause make it mandatory for those people to submit to that kind of pre-clearance clearance?

    I guess I don't understand your question, and I'm sorry, but—

    Well, if they want to be part of the transport of dangerous goods business, would they be obligated to submit to that kind of fingerprint verification system, as demanded by the Americans?

    They would be doing it here in Canada. The enabling authority is to bring that responsibility back to Canada. Right now, under the FAST program, you apply in Canada, and you have to provide your fingerprints, and so on. At that point, Canada makes a decision concerning the security clearance of that individual.

    Then it is over to the United States, and the Americans do a parallel type of review. The Americans then have the opportunity to say no to this individual, and there is no right of recourse for the applicant; there's no right of appeal to a foreign country. What this enabling authority does is bring it back to Canada, so that it is the Canadian government and only the Canadian government that is providing that review. And it provides an appeal process for that individual, should they not be satisfied with the process, to come back and challenge the government, either providing more information about who they are and where they've been and what they do or providing an understanding of why there was perhaps misinformation and getting an opportunity to clear it up and provide new information in the process.

    If I understand this correctly, what you really mean is that the process here is to go through a thorough check of Joe Volpe, applicant. Then you advise the American government that Joe Volpe, the applicant, has passed your stringent test, but you do not share what you have found about Joe Volpe. If the Americans decide to run their own test and come back and say they're not going to accept your assessment, then I can appeal to you and ask, what did you tell these guys?

     No, we wouldn't be going to the United States. If you remember, Mr. Gregoire talked about the work under the former SPP. He was going to go back down to Washington to talk about re-invigorating that process under a new administration. But we are looking at having a policy to understand that the Canadian security clearance background program is acceptable to the Americans, and therefore you do not have to duplicate it—as you do now, under the FAST card process: there's a Canadian and then there's an American review.

    Under this bill, under the regulations that would come forward, it would be a Canadian solution that is then acceptable across North America with our partners—Canada, Mexico, and the United States, and whoever else may join and accept that allegiance.

    That's what the intent is here: to say that this security clearance, granted to a Canadian by the Canadian government, is acceptable in those other nations, and they should be able to proceed; whereas currently, we've given them a security clearance, but now you must do the same to allow that person to continue.

    Should the Americans, under the current system, decide not to accept this individual, that individual has no recourse. He cannot go knocking on our American counterpart's door and ask, why are you turning me down? He or she would have, under this enabling legislation and then the regulation that would follow, the ability to pursue an appeal process to clarify to the government what it is that we're maybe lacking so that we can provide the security clearance, to correct any information that perhaps is not correct, and to provide us with the appropriate documentation that may come from a foreign country to enable us to make the proper assessment. So a worthy applicant can receive a security clearance and continue to operate and work.

    Finally, just to make me feel a little bit better, while you're negotiating the harmonization of the two systems or the mutual, reciprocal acceptance of the two systems, are you not going to share anything personal that you found out about me? Do you just have to convince the other partners that your method of finding out who I am is as thorough as anything they could do, and that's it?

    Yes, and if you look at the end of the bill, this is the only provision that doesn't come into effect immediately, under royal assent, in the sense that we want to have this all worked out prior to using this authority.

    Monsieur Laframboise.

    I want to understand this clearly. Once it is in place, your security clearance would also be valid in the United States?

    That is what we are trying to achieve.

    You are telling me that the Americans will not be able to demand information.

    When we have reached agreement with the Americans about the research and the investigations to be conducted, they will know that we have done the appropriate checking. When a security clearance is given to somebody, they will know that the person meets our requirements. They will accept the card at face value. So there will be no exchange of information.

    There will be no exchange of information and they will not be able to ask to be sent information on anyone.

    No.

    That is what happens under the FAST program at the moment. If someone applies to transport dangerous materials to the United States, he fills in a form with the Canada Border Services Agency. Once CSIS and the RCMP have examined the request, the information is given to the United States, and they then do another check.

    We want the entire process to take place in Canada. Under the bill, a request would be investigated in Canada and the approval of that request would be accepted by our North American partners. We are working with Mexico and the United States to convince them that our application or investigation process is similar to theirs and that it should be sufficient to allow people to transport dangerous goods.

    If it is automatic, why are you opposed to Mr. Bevington’s amendment?

    The amendment stipulates that we cannot share information. Let us say that you arrive in Canada from Mexico for a year. You submit a request under the new authority in the bill, but you only have one year’s experience in Canada. We require at least five years, so you are four years short. In that case, we are going to have to ask the Mexican police…

    If you tell that gentleman that the law requires five years and you ask him to sign an authorization form, he is going to sign it.

    It is in the application.

    That is provided for in the application.

    He is going to sign it automatically. Mr. Bevington’s amendment notwithstanding, that person is going to have sign the authorization. He has no choice.

    If the statutory authority prevents it, we will not be able to include it in our form. We will have to take it out, in fact. At the moment, security clearance applications contain a statement saying that someone coming from another country consents to having his information checked. Otherwise, we cannot confirm that the person comes really comes from that country.

     Okay.

    Mr. Bevington.

    Thank you, Mr. Chair.

    I really am troubled by what you people are doing here. If you read the amendment, it says:

    “Collected”; that doesn't mean that the process of collection can only happen within the boundaries of Canada. It means that once you have collected it—“collected” means the information that has been put together—it is not to be shared. That's pretty clear in this amendment, so you're throwing up a bit of a straw dog here. You still would be able to go to another country and ask about an applicant with this amendment, because it is not about collecting information; it is about the information collected. That's pretty clear. When you put something into a law that says “information collected” you're not saying “for the purpose of collecting information”. There are two different things here. You've put forward an argument to go against this amendment that is really quite specious.

    Even obtaining a person's name in order to go to the foreign government is a “collection” under the act: it is information that has been collected under the act in order to collect further information.

     But the information collected for the purpose of determining whether to grant a transportation security clearance is not their name. You're not using that information to determine whether—

    Well, you do, because you have to know who to give it to.

    —a person is going to be granted a security clearance. You're using the name as an identification of the person.

    Come on. You are using a very specious argument to try to keep the power open for yourselves and for the transportation department and for this government to do what you say you're not going to do. What did we see in the evidence that was presented to us by the longshoremen? CSIS said they would use the information that was collected. That is in an affidavit that was supplied to this committee from the longshoremen's association, who are now in court over these very issues.

    So yes, it's an important issue. I don't want to be caught up with specious arguments about what one term means or another. What we're trying to do here is protect the rights of Canadians from having their information shared with another foreign country. That's what we're trying to do here.

    Shall amendment NDP-2 carry?

    (Amendment negatived) [See Minutes of Proceedings]

    (Clause 5 agreed to)

    (Clauses 6 through 25 inclusive agreed to)

    (On clause 26—Security Regulations)

     On clause 26, we have NDP amendment number 3.

    Mr. Bevington.

     Amendment 3 is an amendment to ensure the appropriate committee of the House will have an opportunity to conduct public hearings with respect to the proposed regulations brought forward by the minister under this legislation. This is really just a chance for some oversight by the proper parliamentary committee for any of these regulations, which we can see through this discussion are going to be pretty contentious in every application everywhere across the country.

    The thought we were going to leave this in the hands of a minister—it may not be this minister, it may not be this government. As legislators, we have a responsibility when we see there are many contentious issues around the rights of Canadians: the ability of our economy to continue to run efficiently, ensuring that security is maintained. We've seen evidence that perhaps some of the ideas that have been expressed here about the nature of these security clearances may not be appropriate. They may not actually get the bad guys.

    So I think it's incumbent upon Parliament, when you pass enabling legislation like this—it's not prescriptive legislation, it's enabling legislation—that you have an oversight capacity within the legislation, and that's what this amendment is trying to do.

    Mr. Laframboise.

    What do you see as the difference between the NDP motion and the Liberal motion?

    One of the major differences is that one is mandatory and the other is discretionary.

    The mandatory element means that each proposed regulation must be submitted to the committee. The other amendment suggests that it is up to people’s discretion, depending on the complaints or the comments provided. This is a major difference.

    When the word “shall” is used, an amendment to a regulation becomes mandatory. We have 3000 pages of regulations, with very technical standards. We make a number of amendments to the regulations, and the majority of those amendments are not contested and cause no negative comment. Even the industry, and the provinces and territories, approve them. So it would become quite a significant burden.

    So the Liberals’ amendment would be more reasonable, in the sense that, in the case of a complaint, we can always study a part of the regulations.

    There are still some implications, of course, but it is easier to manage. If everyone is in agreement, if the people who work together with us, our stakeholders, support the amendments we propose, we do not see why there needs to be a review.

    We understand that there could perhaps be a review if comments are made.

    A point of clarification.

    Mr. Bevington, on a point of clarification.

    “The Minister shall have each proposed regulation to be made under paragraphs 27.1(1)(b), (c) or (d) laid before each House of Parliament.” It's not the entire bill, simply the regulations around transportation security clearances, which are not 3,000 pages.

    Thank you.

    Mr. Volpe.

    My thanks to Ms. Dagenais for her explanation to the committee. I am going to move the next amendment. I always want to be seen as a reasonable member of Parliament, not one who does not want to improve legislation.

    I have another question; whoever looks after legislative matters could reply. I will speak in English, Madam, if I may.

     Does a parliamentary committee have the right to constrain legislation so that it goes immediately to a committee? Seeing that committees are creatures of the House and are given tasks by the House, can a committee in its amendment circumvent the authority of the House and receive jurisdiction directly under legislation?

    Basically, if the House agrees to that type of amendment, it gives the authority back to the committee.

    I guess we'd be doing two things here, because we're going to be comparing two amendments. The fact that I actually proposed one would suggest that I have a particular bias.

    My bias is predicated on the two hats I wear when I come to this committee: one as a member of the House of Commons who guards the authorities vested in the House jealously, and the other one as a member of the committee who guards the rights and responsibilities of the committee with great jealousy. But I don't get a chance to sit on a committee except by the grace of those who have the powers vested in them by party members, so I'm rather jealous about the one I can control.

    Am I giving up one hat—the rather transient one—by supporting either one of these?

    It is legal advice you're giving him, so feel free to bill him, too.

    I am actually a lawyer, so....

    The way we do our consultation process in the directorate is quite extensive already. As I previously said, in section 30 of the current act there is a process that we don't necessarily have to follow, if you consider Treasury Board guidelines. But we do it, because we have a program that works very well: the industry is on board, we have a sharing agreement with the provinces and territories, and we consult a lot on our regulations already. What we don't want is to have to have all our regulations revisited by the committee, if everyone agrees on these kinds of regulations. That's one of the comments that....

    Peter, do you have anything to add?

    Peter, I'm on a roll. Just say yes.

    Well, de facto you already have the ability to call witnesses in, if you wish, so you have the authority now. If you wanted to have people come in and present to you on issues they bring to your attention or otherwise in this committee, it is something that already exists for you. You've had many presentations in the past about regulations or proposed potential regulations that are coming forward in this committee, so you can do it now anyway.

    I guess the question is whether you want to impose this because you feel it's not working well, or is it because you want to review something specifically? My personal opinion is that your focus is on policy and legislation and those kinds of notions for Canadians. If you want to include regulation into it, that's your choice, but it adds a burden of work for you that may or may not be applicable. As we say, we have 800 pages of regulations, 30,000 pages of standards.... You can be bogged down very quickly just by having these kinds of things being brought to your attention.

    And you already—

    Two words; Madame Dagenais said that this proposed section 27.11 is different from my amendment to proposed section 30 by two words. One uses “shall” and the other says “may”.

     I don't worry about either one of them, except that if there is a “shall” that obligates somebody to impose something on me, is there a reciprocal “shall”, when the committee discharges its duty, on the government side? I didn't read that word “shall” on the reciprocal side anymore, because once it makes a recommendation to the House, that's it; it dies.

    That's on Mr. Bevington's amendment, and it's pretty well the same on my amendment.

     I want to know that I'm not giving up a substantive right by saying no to one and yes to the other, because I'm interested in exercising a right, provided that someone on the other side responds to my exercise of it. But I don't see a reciprocal obligation. Do you see one?

     In terms of whether there is follow-up from the committee's review?

    No. Were this committee to receive some of those regulations here, I don't see in that section--and I could be wrong, so I'm asking--an obligation by the government to accept what this committee says after its study.

    No. As for the effect of the “shall”, in these sections Parliament has delegated to the Governor in Council the ability to make regulations and with the “shall” is then further delegating the regulations made by its delegate. It's delegating to this committee the power to review those regulations.

    Yes, according to the text of the amendment, there is no requirement on the government and there's no report required to be laid in order for it to have any effect on the regulations that are being made. I believe the text says “once the regulation has been made”, not “prior” to it being made.

    So in effect, if a regulation is gazetted and an appropriate time has been given for response, once that response is received, there is an incumbent obligation on the Governor in Council to review the interventions by stakeholders before proclaiming.

    That's right.

    Okay. But once that's been proclaimed and then it has yet another obligation to send it to this committee, the committee cannot impose a change on the Governor in Council.

    No, not according to the way it's currently worded.

    I have Mr. Bevington, Mr. Jean, and Mr. Laframboise.

    Once again, I'm kind of astounded by the witnesses here, with their interpretation of these two different amendments. It's not simply “shall” and “may”; it's the scope.

    One amendment deals specifically with the transportation security clearances: when you make a regulation that's going to impact on Canadians, and potentially on the rights of Canadians, that shall go back to Parliament through a committee for referral, for understanding. When it comes to dealing with the rights of Canadians, this is what we as parliamentarians are here to maintain.

    The other amendment, which Mr. Volpe has put forward, says “may review any regulations”. Again, it's “may” review any regulations.

    There are the 3,000 pages, and there's the complexity of it, so these are two very different amendments. I'm kind of puzzled by the witnesses who failed to see that. Can you explain to me why you didn't see that?

    No, I'm sorry. I must admit I didn't see it. I just got stuck on the words “shall” and “may”. As I said before, I think if you create an obligation for--

    Or did you come here with the intention of presenting a political point of view?

    No, I don't have any political point of view. I'm just here to make sure that when we pass regulations, and the regulations are all agreed on by all our stakeholders, by industry, territories, and provinces, and we end up having a consensus, then I don't understand why the regulation needs to be reviewed by a committee and give you more business than--

    Okay, then you'll withdraw what you told Mr. Volpe about these two amendments, that--

    Well, what I--

    This one deals specifically with very important concerns around the rights of Canadians, the information that's collected about Canadians, where that information goes, who's going to be in and who's going to be out of having a job.

    Then this one deals with everything. It allows parliamentarians, if you want to, to take a look at how we're setting up transportation security plans, how we're doing safety regulations, and how we're doing anything within the bill. These are two quite different things. Agreed?

    I agree.

    Mr. Jean.

    Thank you, Mr. Chair.

    First of all, I did have an opportunity to read the amendments. Quite frankly, I think Mr. Volpe's is a good amendment, and I'm prepared to support that from the government's perspective.

    I did want to clarify, though, with Mr. Coyles, specifically in relation to sections 19, 19.1, and 20 of the Statutory Instruments Act. That deals specifically with regulations and indeed gives the authority to the committee completely; you said “sort of” gives the authority.

    Under that particular act, we have authority to review any regulation at any time and make a report. In fact, just in regard to one regulation, we can present that report to Parliament and ask them to revoke a particular amendment. If we don't like it on our own basis, we can research and do all of that stuff that is requested. In essence, if I understand this correctly, the only difference, really, between Mr. Volpe's amendment and Mr. Bevington's amendment is a mandatory “shall”, which means the committee has to do it every time there's a regulation.

    A voice: Yes.

     Well, regulation pertaining to the sections that are in--

    In relation to this, yes. And in Mr. Volpe's case, it's “shall”, if the committee finds it upon themselves, if there's an aggrieved Canadian. Because obviously all regulations deal with Canadians and the rights of Canadians--every single regulation that goes through the House of Commons or through departments under enabling legislation.

    And through Governor in Council, etc.

    Absolutely.

    The minister is accountable, and therefore those individuals have the right to go to the minister and challenge any regulation that may be made at a departmental level. The minister is accountable for that in relation to his authorities and what he would like to do for public safety. There is the review, as you've talked about, under section 19.1, by the standing joint committee on regulations.

    If I may, is it not true that the Treasury Board continues to have a restrictive area to deal with the same issues, in essence?

    Yes, and we're actually more restrictive, as Madame Dagenais was saying. Section 30 in our act requires us to consult right at the beginning of the process. We've mandated that.

    There was testimony here from many different players, I think the teamsters as well, that suggested this is perhaps the consultative mechanism model for not only the department but for making regulations. I don't want to put words in their mouths; I'm paraphrasing a bit.

    We're already starting right at Canada Gazette part I to enable that consultation process. For us, that consultation process begins before. It's not just Canada Gazette part I and then you have the opportunity to consult.

    You've heard testimony that we use the minister's advisory council, which has all the industry--the modal representatives, unions--the first responders, and public at large, who provide advice to the minister. We use the task force, which has all the provinces and territories. All this is done prior to gazetting. We then consult with our players.

    Then, after we have some type of common understanding, we go forward with Canada Gazette part I to seek formal comments to look at having a review of those regulations. That section is already more stringent than what Treasury Board guidelines are proposing or require the government to do.

    And those guidelines actually mandatorily require that consultation process.

    Through the Canada Gazette, correct. But you could go to Canada Gazette part II under the smart regulations. We start at the process we defined.

    Further, is there a mechanism for reviewing and appealing regulations that already exists today, even outside the scope of this?

    Again, sections 19 and 19.1 give you a review. You have the whole notion, as I was trying to explain, of how we develop regulations, so there's a lot of opportunity for review and appeal. Right through the process you have opportunity to comment through the Canada Gazette. We must respond to every single comment. If we have some type of general understanding and consensus, then we must move forward to Canada Gazette part II to publish a regulation that would come into force.

    I have a final question, and it might be the clerk who will answer this.

    Since the House committees are the masters of their own destiny, would this possibly be ultra vires and beyond the ability to legislate because it's a mandatory obligation on the committee?

    I'm curious, and maybe the clerk can answer that. But certainly we are masters of our own destinies. That's my understanding of a committee. If we do impose this upon ourselves in future committees, is that not acting beyond our actual jurisdiction and ability to legislate?

    There's no question that could be the case. You have the authority and ability to call witnesses now. You do that on occasion. I can remember many transport regulations that were debated in committee prior to a regulation coming forward. I can think of certain ones on the air side, which you are probably more familiar with than I. The flight attendant ratio is what I was thinking of. You had witnesses come here, testify, look at issues, etc., prior to the development of regulation. So I think you already have that ability to do so.

    Again, we do not have a political motivation. We're here to provide you with advice and allow you to make the best decision for Canadians.

    Mr. Coyles, I want to confirm something, and I think you already have. You already confirmed that in sections 19 and 19.1 we have it.

    You have it, yes.

    Monsieur Laframboise.

    Perhaps your motivation is not political, but the Conservatives’ is. I spoke with the parliamentary secretary. When representatives from Teamsters Canada appeared here, they said that they would have liked to see a provision similar to the Aeronautics Act. This is from the text that they submitted to us:

    I thought that the parliamentary secretary would have introduced an amendment along those lines, and I talked to him about it. Why did the government not want to introduce one? We should probably include you in the questioning to find out why you had no interest in making an amendment. I found the Teamsters Canada representatives' request to us to be very reasonable, and the way in which they participated and worked with us to be positive.

    Why could we not agree on an amendment that would have satisfied Teamsters Canada? Otherwise, I tend to think that the NDP proposal and the Liberal proposal are equally as good. I would be inclined to vote for both. It looks like the government did not want to propose what the Teamsters Canada representatives were asking for.

    My first question goes to Mr. Jean. Why did the government not want to accommodate Teamsters Canada?

     Mr. Jean.

    I actually did have a motion. I saw Mr. Volpe's motion. I talked to the teamsters. In fact, one of the representatives is here, and I have frequent conversations.... Or he was here; he's gone now. I have frequent conversations with him, and we showed him a copy of the legislation that we proposed in Bill C-7, which is exactly the same legislation that he is proposing and has actually been proposed by Mr. Volpe.

    I thought, in the spirit of dealing with less paperwork and killing fewer trees, I would try to just deal with it on that basis.

    The difference is just “shall” and “may”. That's the difference for me. I quite frankly do think it's beyond our authority to bind future committees to that. But it's not only that. We have the ability to do so now. We have the ability to bring it before the committee and deal with it, as we did with stewardesses and the ratio between different planes, etc. We did do that, and we worked together on that. I think we have the ability to do so. That's why the government is supporting Mr. Volpe's motion, because it is working with the teamsters.

    Mr. Bevington.

    What is the difference between the two motions and what they address? Our motion addresses the nature of a transportation security clearance. The transportation security clearance is going to be something that has to be negotiated with the United States. This is not something that's going to be done if regulations that apply under the transportation security clearance are going to have to match up to what another country tells us will be their requirement for us.

    The process, the information collected, all those things will have to be negotiated with the United States. That's pretty clear. The United States is not giving us a free card here. They're saying if our system matches up to their requirements, then we'll be okay.

    So what is going to happen with these regulations when they are in front of a committee with umpteen people around and we've already been through an international negotiation over those regulations? Are we going to be able to change those regulations? Are we going to be able to modify them? Is the government going to listen to the people who are not legislators?

    This is why I think it is very important when we deal with this type of situation, where we're going to be making regulations that are going to be approved by another country, that those regulations come back in front of Parliament. That is why the “shall” is on that section. The “shall” is on there because it is very serious business for Canadians to accept regulations that have to be approved by another country. That is the “shall” side of it.

    On the “may”, with everything else in the bill, it's entirely within the hands of the Canadian government to negotiate, to set regulations within the scope of this country.

    So we have two different situations here. One of them will give protection that Canadian workers deserve. That the regulations are not onerous on those workers, that the conditions of the information they share with the government are well understood, all those things need that kind of oversight. There are two separate things going on here, and I'd surely ask the committee to look at it that way.

    This is not the same thing. We divided them up. Both of these amendments can go forward and work very well.

    Thank you.

     Mr. Kennedy.

    Yes.

    I remember the witness from the Teamsters. Here is my idea: if there is a vote here, perhaps the officials would be better at formulating the question.

    In terms of that, in other words, we're giving regulatory power to the minister, so we shouldn't pretend we're keeping it at a committee or at Parliament. That's the nature of this bill, and I guess the flexibility is required. I would be a little bit more optimistic than Mr. Bevington, in the sense that I would like to believe that whoever is negotiating for Canada's interest is simply not just going to learn what the Americans want. That's what I would like to believe, and I say that as a general principle that isn't necessarily always upheld. But that's what I'd like to expect. I don't think you create laws with the sense that someone is going to go out and do a bad job.

    However, I'm looking quantitatively between the two propositions we have. If this ground has been covered when I briefly stepped out, I apologize, but I just wanted to make sure. One says “a proposed regulation” and one says “a regulation”. Is there a state in which something is a proposed regulation that is meaningful? And what does that mean in terms of the interruption to the process and so forth? If I'm not mistaken, the wording is distinctive, correct?

    Just to briefly explain the regulatory process, there's often an initial consultation. A proposed regulation is drafted and it's published in Canada Gazette part I. Under this bill, it is required to be published in Canada Gazette part I. At that point there is a comment period in which people can submit their views on the proposed regulation, and then the actual regulation is made when it is published in Canada Gazette part II. So there is a distinction between a proposed regulation and a regulation.

    Okay. I anticipated as much. I just wanted to be certain of that.

    Again, I think the salutary advice we received was that the idea that the committee will be looking at it, or has the opportunity to look at it, is going to have a practical effect on the validity of regulations. So I think both the motions satisfy that. If we're not going to be able to change things, there's an enormous distinction to be made. I guess, in one case, if public scrutiny turned out to identify errors, then you would have to go back and change your regulations, as opposed to change one in mid-stream. Is that correct?

    Yes.

    Mr. Volpe.

     Mr. Chairman, I thank you very much.

    We've been discussing this for quite some time, and it's just an impression, but in discussing this we've gone over into the amendment that I proposed. And in fact they kind of overlap.

    My intervention is designed to assure Monsieur Laframboise about what my perception of the difference is. It also indicates to Mr. Bevington that I don't think my amendment has any less impact than his own, inasmuch as my understanding of the way we work in Parliament is if there is a report that comes out of a committee on anything, especially regulations, once you report the findings of this committee, the House concurs in that report and that obligates the government to take that report as a newer aspect of that legislation--in other words, to implement those regulations as they are seen by this committee.

    I could be wrong in my understanding of that--I've been wrong before--but for Mr. Laframboise and for those others who are looking at what the basic difference is, I see my amendment.... And I hope you don't see this as being too presumptuous, Mr. Chairman, because we are now talking about an amendment that's not on the table, but I'm going to ask you to do something in a second. I think my amendment is actually broader in its scope than the amendment Mr. Bevington proposes because mine refers specifically to any regulation made under this act, whereas Mr. Bevington refers only to those made under paragraphs 27.1(1)(b), (c), or (d).

    And Mr. Bevington's amendment constrains the House by obligating it to send it here, essentially while it's got it on Canada Gazette part I. In other words, we'll actually be inviting those witnesses that the department is obligated to listen to under Canada Gazette part I.

     I think mine goes a little bit further. And even though it uses the word “may”, it's part of the convention of this parliamentary process that we can take everybody after Canada Gazette part II and say okay, you've had six months or you've had a year, what problems do you see, and we can make the adjustment.

    The reason I think that's wider is that Mr. Bevington, notwithstanding his good intentions, says “The committee shall, within 60 days...”. That's like two months. With due respect, that's probably not enough time to find out whether those regulations are actually workable, because they will not have been seen to work, inasmuch as they are in Canada Gazette part I.

    So I'm going to ask, Mr. Chairman, without any arrogance or presupposition, whether you would sound out this committee to see if we can move immediately to determine whether we actually do want to accept Mr. Bevington's amendment, and if not, would we go directly to mine.

    Mr. Bevington.

    Yes. You know there is quite a difference here, actually, and I'm glad Mr. Volpe pointed it out, because it's something that fits well with what I'm trying to get across, which is that this amendment speaks to the transportation security clearances, which have the ability to impact on the rights of Canadians. Therefore, it's probably a good idea to review those regulations in front of Parliament prior to their implementation.

    Mr. Volpe's amendment is a good amendment, and it covers everything after it's implemented. So after the fact, and that's quite clear, made under this act, with a written complaint or by its own initiative, it can bring back these regulations for review after they have been in place.

    So on the one hand, we have an issue that is more of a charter issue, which ties to the rights of Canadians to privacy, which should be very carefully examined prior to issuing the law. On the other hand, we have regulations, which need time in the field to ensure they are correct or not correct. So these are two quite different things, and that's why I think they both stand very well. And I would encourage Mr. Volpe, along with everyone else, to see that we can live with both of these within the bill.

     Thank you.

    The rules would suggest that we have to deal with this amendment as it's been presented, and I will ask now for those who are in favour of amendment NDP-3.

    (Amendment negatived) [See Minutes of Proceedings]

    (Clauses 26 to 28 inclusive agreed to)

    (On clause 29—Ministerial fees orders)

    We come to the much-discussed amendment LIB-1.

    Mr. Volpe.

    As I've indicated, Mr. Chairman, I think this amendment gives this committee the opportunity to take any regulations, including the ones that have been the subject of discussion over the course of the last half hour, and to bring in witnesses or those who have a specific reason to feel dissatisfied at any time after they've been promulgated, and make a report that hopefully will be passed by the House of Commons, will be accepted, and will be concurred in. If that is the case, then we'll resolve the problem.

    I think this particular motion, this amendment, would meet the support of stakeholders in the industry. We talked about teamsters earlier. I think they talked with all government and opposition members, or at least all parties--I don't know whether they talked to every member--in order to see if they could get support. I dare say they would probably be supportive of this as well.

    Are there no comments?

    (Amendment agreed to) [See Minutes of Proceedings]

    (Clause 29 as amended agreed to)

    (Clauses 30 to 37 inclusive agreed to)

    Shall the title carry?

    Some hon. members: Agreed.

    The Chair: Shall the bill as amended carry?

    Some hon. members: Agreed.

    The Chair: Shall the chair report the bill as amended to the House?

    Some hon. members: Agreed.

    The Chair: Shall the committee order a reprint of the bill as amended for the use of the House at the report stage?

    Some hon. members: Agreed.

    Well, that's the first bill. Thank you, ladies and gentlemen.

    I have just a little bit of business. On Thursday, March 12, I'd like to have a subcommittee meeting, perhaps for one hour. We can plan what we're going to do when we come back from the recess, and that will allow our clerk to bring witnesses as required.

    If that's all good, then I shall adjourn the meeting.

    Have a good break week.

    The meeting is adjourned.