STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS
COMITÉ PERMANENT DES FINANCES ET DES AFFAIRES ÉCONOMIQUES
Thursday 15 May 2003 Jeudi 15 mai 2003
Thursday 15 May 2003 Jeudi 15 mai 2003
The Chair (Mr Joseph Spina): The committee on finance and economic affairs will come to order. The first item on our agenda is the adoption of the subcommittee report dated May 7, 2003. The report of the subcommittee was to consider the method of proceeding on Bill 2, An Act to amend the Highway Traffic Act to restrict the conveyance of passengers for compensation. Does everyone have a copy of this with the four recommendations? Could we ask someone to move its adoption?
Mr Raminder Gill (Bramalea-Gore-Malton-Springdale): If I may make a comment on item 3 of the subcommittee report, "That the deadline for submissions be Wednesday, May 14, 2003, at 12 noon," we were under the impression that it was 4 pm. It might have been a mistake on our end, but we did get some submissions, substantial submissions with about hundreds of signatures, supporting the bill a little later in the afternoon and they were handed in to the clerk by about 3:40 pm. If the subcommittee will allow us to include those submissions, I would really appreciate that.
The Chair: Can I clarify, if I may, Mr Bisson? There were written submission made to the committee and they did not get received by noon, as was decided by the original subcommittee, so Mr Gill is asking that we extend that deadline in order to be able to receive those written submissions to the committee.
Mr Gilles Bisson (Timmins-James Bay): I don't have any problem giving consent to that, but I think we end up with this problem when we try to rush the legislative process. That's what's basically happened here. In a rush to get this bill through, people had almost less than a week to respond to this. I think this is an example of why we shouldn't be rushing the legislative process.
Mr Beaubien: Your subcommittee met on Wednesday, May 7, 2003, to consider the method of proceeding on Bill 2, An Act to amend the Highway Traffic Act to restrict the conveyance of passengers for compensation, and recommends the following:
4. That the clerk of the committee, in consultation with the Chair, be authorized prior to the adoption of the report of the subcommittee to commence making any preliminary arrangements to facilitate the committee's proceedings.
Consideration of Bill 2, An Act to amend the Highway Traffic Act to restrict the conveyance of passengers for compensation / Projet de loi 2, Loi modifiant le Code de la route pour restreindre le transport de passagers moyennant rémunération.
Mr Monte Kwinter (York Centre): On a point of order, Mr Chair: These amendments are normally government motion number one to whatever they are, and these aren't numbered. Is there some sequence or do we just have to play it by ear?
We have moved adoption of the subcommittee report and that's been carried. We now move to clause-by-clause consideration of Bill 2 in the name of Mr Gill. Are there any comments, questions, or amendments to any section of the bill, and if so, to which section?
Mr Gill: First of all, I want to take the opportunity this morning to thank the subcommittee as well as the committee for allowing me to bring this bill forward at a very -- I wouldn't call it speedy -- expedient pace. I think this type of legislation is long overdue; I mean years. I'm glad we're finally bringing it forward.
Mr Gill: Mr Chair, if I may add, some of these amendments do actually have an effect of removing subsections 1(1) and 1(2). They're going to be eliminated. So if you want, I can move that we eliminate 1(1) and 1(2).
The Chair: The procedure, if I may advise the committee, is that if you're going to be substituting those elements of section 1, you need to defeat section 1, and then it would be reinstituted when the motion is made for section 2.
Mr Bisson: I don't want to get caught up in the minutiae. Let's not get caught up in there, because I really don't care about that. That's not my initial question. My question is, why do you want to vote against this entire section? That's my real question.
Mr Beaubien: First of all, I think we have to move something, because we're debating something that's not on the floor right now. So I think somebody's got to move section 1, because there's nothing on the floor right now to debate.
Mr Bisson: We don't have to make a motion on section 1. You opened the committee hearings. We are in the first section of the clause by clause. He put us into a position of clause by clause, and we're now talking about section 1, are we not, Chair?
Mr Kwinter: Mr Chair, we received four amendments. None of them refer to section 1 of this bill, and Mr Gill is saying that he's going to explain it. It would seem to me that it should be explained by something that we could see. Right now, I don't know what we're voting on because there's nothing that we can see.
Mr Kwinter: Mr Chair, with respect, this is effectively an amendment to remove that section, and you would think that when the government tabled its amendments, it would include that particular provision so that we could see what it is that you're proposing.
Mr Bisson: OK. You could have moved the amendment; you didn't. But now you're going to recommend to us to vote against section 1. I need to know why the author of the bill wants us to vote against section 1 of his own bill. It's a bit of an odd situation. Go ahead.
The Chair: Can I ask a question here? The only amendments that we have before the table all have to do with section 2. So, with respect to section 1, are you moving that it be deleted? Is that your request?
Mr Gill: I need to request that the committee allow me to remove section 1. The reasoning behind that is that section 1 deals with, if somebody is a repeat offender, then the vehicle plate will not be renewed. We're taking that effect of this law away from doing that. The reasoning behind that is that somebody could borrow or rent a vehicle and go and do an illegal act. It is very difficult to control that or implement the penalty -- not to renew the sticker of a vehicle. This effectively, by voting down section 1, removes that provision.
They have approached different levels of government. That's why this is here as a private member's bill. In the consultation, even though we originally felt that the plate denial is an appropriate penalty, when we came down to actually finding a method of applying that, it was discovered -- perhaps we should know when we bring these bills. I have yet to see a bill come in and everything has been thought of. Perhaps we should have thought of it before, but the practicality is that things come up as you -- that's the procedure. That's the reason for coming to committee, actually, so we can sort these things out. We can try to remove things that may be impractical. But I wish I were so perfect that we had thought of everything earlier.
Mr Kwinter: In the explanatory note the issue you're trying to correct is referred to under section 69 of the Provincial Offences Act. It would seem to me that you should not be amending the Highway Traffic Act if the penalty you're trying to prevent is covered under the Provincial Offences Act. I would say that a cleaner way of doing it is just to put an exclusion that, notwithstanding these penalties, a person who is convicted shall not be subject to the Provincial Offences Act. It removes that provision. It isn't covered in the Highway Traffic Act; it's covered in the Provincial Offences Act under section 69.
Mr Bisson: I come back to Mr Gill. Far be it from me to say that you're imperfect. That isn't the point. What I'm saying is, if this has been an issue for some 20 years, is it the first time that somebody approached you after you introduced your bill that said we should not give the authority to refuse the issuance of a plate? Was it only after you drafted the bill that somebody caught that, or what?
Mr Gill: When the issue was brought to me, I also felt it would be impractical to perhaps implement that. If it's a rental vehicle, how do you go after the plate to deny that if somebody else, a third party, commits the offence?
Mr Bisson: We've passed similar legislation before on rental vehicles, and you exclude them. All of a sudden you're now saying, "I thought it was impractical when I drafted the bill." It brings me to the question, why did you put it in? But certainly somebody came to you and said, "This should not be in the bill." Was it the ministry that suggested that? Was it stakeholders who suggested it? I just want to get a sense of where this concern comes from. Who's concerned? Is it the ministry? Is it stakeholders?
Mr Bisson: OK, that's what I wanted to know. So the ministry thinks that may be a problem. The problem I have is -- this is to leg counsel -- I don't have the Highway Traffic Act, so it's a little bit hard to put this into context. I read through the bill. Is it through section 1 by way of the amendments in (1) and (2) that the sticker is going to be refused? It's pretty hard to follow that without having the Highway Traffic Act in front of you.
Mr Michael Wood: Yes, that is correct. The lawyers from the Ministry of Transportation could intervene since it is the ministry that has the primary responsibility for giving opinions on the Highway Traffic Act, as that ministry administers the act, but I can read you subsections 7(10) and (11).
Mr Bisson: I'm just trying to figure out how it would have worked, because when I read (1) and (2), it talks about how it's going to fit in, but nowhere in here does it say -- it talks about "a fine imposed on conviction of an offence under section 40.1," but it doesn't talk about the refusal of issuing a sticker or a new plate. I'm just wondering how that all tied in.
Mr Wood: The present subsections 7(10) and (11) of the Highway Traffic Act provide that a new permit will not be issued unless a fine has been paid. It does make specific reference to the fact that an order or direction can be made under section 69 of the Provincial Offences Act. That is also an answer to Mr Kwinter's question earlier as to why we were amending the Highway Traffic Act and not doing an amendment to the Provincial Offences Act.
Mr Bisson: That brings me to the root of my question, which is: currently in Ontario if I have unpaid fines and I go to renew my sticker at the chamber of commerce in Timmins where that's done, they will not issue my renewal sticker until I pay those fines, correct, as per the Highway Traffic Act? Now that we remove section 1, if somebody does not pay their fine vis-à-vis the offence that may be created under this act, it would mean they wouldn't withhold the sticker from you.
Mr Wood: If you defeat section 1, the law stands as is. You can't get a new permit until you pay the fines that are imposed for a parking violation, for instance, but the fines that would be imposed for an offence under this act would not be additional grounds for refusal of a new permit.
Mr Bisson: OK, but I'm correct in my assumption that if I take my car, I go to Pearson airport, I scoop the fare, I get a charge and I don't pay the fine, I can't get my sticker renewed if we vote against this section. They will not renew my sticker if I don't pay my fine if this section was defeated.
Mr Bisson: What we've got in effect by voting against this section is a bill that says, "If you scoop a fare, you're going to get a fine. But by the way, if you don't pay the fine, don't worry. You won't lose your sticker."
The Chair: Could we ask you to step forward in the event that somebody wants a clarification, please? Could the counsel come to the bench, please? Thank you. I'll let Mr Gill, while you're getting settled, make his comment, and then we'll see if we can get to you.
Mr Gill: As soon as we get Mr Bisson's attention, I will -- Mr Bisson? What it does is, even though your plate sticker is not being denied, your driver's licence can also be suspended; I think that's what the penalty is. Perhaps I'll ask the ministry to expand on that.
Mr Jamie Hanson: My name is Jamie Hanson. I'm counsel with the Ministry of Transportation. Mr Gill's explanation is correct. The original draft of the bill contained two primary sanctions for non-payment of fines: the plate denial that is under consideration right now as we discuss section 1, and the further sanction was denial of the driver's licence; that sanction would remain.
Mr Gerry Phillips (Scarborough-Agincourt): I think that answered my question. I guess the issue, then, is the explanatory note. When we debated this for second reading, a big part of it was plate denial -- I think that's a big part of the explanatory note -- and I gather we now are going to remove the plate denial. I guess just to help me along with why it originally was in and now why it should come out, either Mr Gill or --
Mr Gill: Basically, the idea was to put teeth into this law, but then we realized the scenario where the car is a rental vehicle. If somebody happens to take their dad's car, why should the plate sticker be denied? Or if it's a rental car, how can the plate be denied? So for that reason, we felt that perhaps the licence suspension -- and as I understand it, contrary to what Mr Bisson says, it's not after three years that your licence will be suspended. It can be done right then and there --
Mr Phillips: No, I would just comment that it might have been helpful, during second reading debate, to have this -- and maybe it's impossible, but it does change the basis on which, I think, many people there supported the bill. They may still like the bill, but we're making a relatively significant change, and perhaps the right change.
Mr Peter Kormos (Niagara Centre): OK, we've got the suspension issue clarified, because it is a suspension, not a denial of renewal of the driver's licence. That's the standard. That's the status quo. The government has had to address this in other bills, for instance around seizure of vehicles being driven by a suspended driver, and they've had to exempt car rental companies and car leasing companies who retain title.
But you've got to help me here. Under section 2, the offence can be committed by the driver, and the offence in fact can be committed by the owner or lessee. So it's incorrect to say that the offence can be committed only by the driver. Is that fair?
Mr Kormos: How does that jibe, then, with the proposal of Mr Gill, which I think I understand? Does that exclude an owner from having his or her right to renew their plates denied, even if they were convicted under what will be section 40.1? Do you understand what I'm saying?
Mr Kormos: Which is pretty standard. It's a pretty broad range of -- I mean, I go there and it costs me a few hundred bucks each time I pay parking tickets. Right? Fair enough. But you want to remove this offence from one of those which can result in a prohibition of issuing a new sticker. Correct?
Mr Kormos: So those owners and lessees who in fact commit an offence and are convicted can have been convicted but not suffer the penalty of not having their licence renewed. Is that correct? That's the way it looks to me, but then again, I'm just from a small town.
Mr Kormos: And the discussion is about whether or not section 1 should be incorporated as part of this bill. If section 1 is rejected, then nobody convicted under 40.1 can be the subject of a sticker refusal.
Mr Kormos: How then do we incorporate the guilty owner or lessee? Because this is so slick. Do you realize the loopholes that we're generating here? I can see some clever people, people smarter than I am, structuring a little owner-lessee structure, weaving in and out so the vehicle can literally stay on the road, and it's a matter of paying for a "licence" by simply paying your fines. Do you understand what I'm saying, Mr Gill? We know what a cab licence costs.
Mr Kormos: I could buy two houses in Welland for what a cab licence costs here in Toronto. Do you understand my problem with this? I appreciate what you're doing, but is there a way of doing it a little more finely? You don't want your net to be so broad that it punishes innocent parties, but you don't want your net to be so tight that bona fide guilty people don't have the same penalty imposed on them that, heck, you or I do for not paying crummy parking tickets. That's the problem. I appreciate what you're trying to do. I don't think anybody is unsympathetic to the goal of ensuring that innocent owners and lessees don't get the shaft, but I'm sure you want guilty owners and lessees to get shafted big time.
Mr Bisson: I understood from Mr Gill's comments that what he's trying to do, as Mr Kormos and I have pointed out, is to remove the section which basically says that you lose your sticker. But as I read section 2, we're in a weird situation -- and Mr Kormos has talked about that -- where you might remove the sticker, but the fine can actually be given to the person who owns the car. So you can have somebody take a rental car, for example, and go out and do some scooping at the airport, and Tilden or National or whoever it might be could end up with the fine under the bill, because of the way this is written.
Mr Bisson: If convicted. My point is that if you only want the person driving the car to get it, if that's your stated objective -- and I think that's what you want -- we need an amendment here, which we don't have, to be able to deal with that. Because at this point, it's a bit of a loophole in the act.
The second issue, to me, is a bit of a troublesome one. It's far less expensive for me to pay a $305 fine on a first offence and a $500 fine on a second offence and to keep on scooping than it is to go out and get a licence from the GTA authority at the airport.
I'm not sure this thing is going anywhere near what the stated aim and objective of the bill was. The objective, as I understood it, at second reading, was that those who are the scoopers would be penalized by the two mechanisms we talked about this morning: the sticker renewal and the fine. And now what we've got is that it would actually be cheaper under this act to get the fine than it would be to get a licence from the GTA.
Mr Kwinter: On the same point, subsection 40.1(1) says, "no driver of a motor vehicle shall, and no owner or lessee of a motor vehicle shall permit a driver to" do these things, which means that regardless, if the driver is convicted, the owner is convicted, because the onus is on him to make sure that doesn't happen. Then we get back to the argument and discussion we're having now: how do you enforce that? What is the method? Does the owner automatically get the same fine as the driver? If the fines are not paid, does it then revert back that they're denied a right to renew their licence? I think this has to be clarified.
Mr Gill: Just to talk to Mr Kwinter's question, the person who is driving the vehicle is subject to the fine, not the owner, as I understand it. So the person who's driving it gets the ticket. The fines have been kept fairly high: the minimum for a first offence is $305.
Mr Gill: For the second offence it's $500, up to $5,000. If it's a repeat offender and people see that this is a habit, then the judge can have even the first offence be up to $5,000. So I think those are a deterrent in themselves.
Mr Kwinter: I just want to get a clarification of the answer I just got. He said that the act specifically says it's the driver and not the owner. I've read it again just now, and it says both the owner and the driver are subject to penalties -- both of them -- which gets back to the original question I had: how do you do that?
Look, the denial of a validation sticker is not perceived as a penalty. It is a means whereby the province can collect. You show up there, they do the printout and you owe 400 bucks or 500 bucks. No money, no sticker; end of story. So it's not a penalty. I'm sure the Highway Traffic Act never contemplated it as a penalty. It's a consequence, but it's designed to facilitate payment. That's number one.
Number two, let's understand what's going on here. I think the bill, quite frankly, is fine in terms of what you want to achieve. The driver of a vehicle, if convicted, cannot renew the licence plate sticker on his vehicles, on vehicles registered in his or her name. If I'm driving Spina's Cadillac and I commit the offence, Spina gets a renewal sticker on his Cadillac; I can't renew the sticker on my 1994 Chevy S-10 pickup. If I am an owner who is convicted as a result of 40.1 -- John Smith, the owner, can't renew the sticker on John Smith's vehicles until John Smith, the owner who has been convicted, puts some cash on the dash, as they say. If I am the lessee and Raminder Gill is leasing my car and committing an offence, but I as the lessee am not convicted under 40.1, it's Raminder Gill who can't renew the sticker on his Lincoln Town Car. It's not the lessee who can't renew the sticker on my 1991 very old Buick. Do you understand what I'm saying?
You don't have a problem here because it depends upon a conviction under 40.1, and the conviction doesn't attach to the vehicle -- notwithstanding what those SOBs in the insurance industry do; the conviction attaches to the individual who is convicted, be it corporate or non-corporate, and his or her vehicles registered in his or her name.
So there's no problem here. If a lessee is convicted, they have to be convicted as a result of knowingly permitting. In that case, that lessee should have to pay up, and if they don't pay up, let them pull the stickers or not renew the stickers. If an owner is an innocent owner with a driver convicted, that owner doesn't have a conviction under 40.1 and therefore won't fall under the denial of renewal of a validation sticker. There's no problem. Don't create problems where you don't have them. It's those poor legitimate cabbies who have problems.
In any event, if we vote against subsection (1), basically you can't withdraw a sticker from anybody, correct? If we vote down subsection (1) and it's struck from the bill, then the refusal to issue the sticker to whomever is not an issue.
Mr Hanson: That is correct. The current subsections 7(10) and 7(11) of the Highway Traffic Act, which actually address the issue of permit denial and permit suspension for unpaid parking infractions, would still be there. So nothing would change. The current regime would stay in place.
Mr Bisson: No, you're not hearing the arguments. We still haven't dealt with what we need to do to fix this. In my view, we still have a problem, and I just want to clarify that. Basically, the same regime that's in place now stays in place. If the owner of a vehicle gets the fine, you cannot withhold the sticker, right?
Mr Bisson: So my question is, if we don't amend subsection 40.1(1), if a rental company has their vehicle out there, would it be that the only person who is given the suspension is the driver? Or do we have to change that at the end there, where it says, third line down, "owner or lessor of a motor vehicle shall," to insert the word "knowingly" in order to exempt all those others so that the rental company or the lessor is not caught up?
Mr Wood: I just wanted to respond to one point that Mr Kormos raised and perhaps the ministry counsel could also clarify this. In the present subsection 40.1(1), the new subsection 40.1(1) of the Highway Traffic Act, as set out in section 2 of this bill, it would seem that the owner or a lessee of a motor vehicle would be guilty of the offence for permitting the driver to engage in that conduct, whether or not the owner or lessee permitted that knowingly. It would seem to be an offence more of strict liability if the owner or lessee allowed it to happen. Therefore, if Mr Kormos wanted to make a motion to restrict that liability, then it would seem to me the way to do it would be to insert the word "knowingly" so that it would read, "no owner or lessee of a motor vehicle shall knowingly permit a driver to" etc.
Mr Kormos: Legislative counsel's suggestion is not inappropriate. In my view, "permit" logically implies giving permission to do the following things: giving permission to operate that vehicle for the purposes proscribed. But you've then got to understand that "knowingly permit" sets the bar a little higher because you incorporate some intent, as I am told, into absolute offences. These are absolute offences, right, under of the Highway Traffic Act? Yes, I think they are. So again, "knowingly" would clarify that, but it also would raise the bar and create two words where one word might suffice. You might want to take a serious look at other statutes and see whether "permit" in and of itself is used. I give you permission to drive my car, that's one thing, but if I give you permission to drive my car to run illegal booze across the border, that's another thing. Here it's not just permission to drive your car, which, let's say, a lessor would have as a right, but it's permission to do the following things: to convey passengers anywhere in Ontario for compensation. So Mr Gill, I would urge you -- and I appreciate this isn't the result you wanted -- but maybe even in the next half-hour somebody could take a look at some precedent around the use of the word "permit" as compared to "knowingly permit." To me, "permit" creates the offences because it's "permit driving the vehicle and carrying passengers for compensation." That's what the permission is. So it implies "knowingly." But you do what you want because it's your bill and I've got to go.
Mr Bisson: I just have to ask Mr Gill a question. So you are asking us to vote against that particular subsection (1); I understand your logic. Was it your intention to not remove somebody's sticker altogether, or would you rather have just removed the sticker of the person who created the offence?
Mr Bisson: So as the drafter of the bill, why then would you not amend that subsection? In other words, you cannot renew your sticker if you don't pay your fine. If you want all that to stay in place, for just the offender, rather than vote against an entire subsection, leave it blank. Why not come back with something that basically says that the rental companies are not on the hook and all those other examples we used this morning, so that clearly it's only the offender who would be subject to that refusal of the sticker. I'd be prepared to support that, if that's where you want to go.
The Chair: OK. Do we have unanimous consent to postpone section 1 of the bill, and then we'll go into section 2 in the meantime while leg counsel drafts the amendment? Agreed? Agreed. Section 1 is deferred.
Mr Bisson: I have a question before that amendment. I'm back to 40.1 again. Let's say subsection (1) was not to pass. We want to fix the situation so that we don't make it possible for anybody but the offender to be given a fine under this bill. In your view, as the counsel for MTO, after the third line in 40.1, if we were to put in "motor vehicle shall knowingly permit" -- this whole argument that Mr Kormos has raised -- does that keep the rental companies and the lease companies off the hook?
Mr Bisson: That's the whole spectre that Mr Kormos raised. What do we need to do in that section, in your view, to make sure that we don't end up putting them on the hook for -- just making sure it's the offender? As I read that, it says, "Unless all of the conditions set out in subsection (2) are met, no driver of a motor vehicle shall, and no owner or lessee of a motor vehicle shall permit a driver to." As I read that, it basically means that if somebody borrows my car and I give them permission to take the car, or the rental company rents the car, they could be held liable, unless I'm mistaken.
Mr Bisson: The amendment that Mr Gill wants to give is under subsection (2). I'm still on (1), and we're having a discussion on subsection 2(1) of the bill. So I'm in order. I think leg counsel wants to say something and that will probably --
Mr Wood: I could draft something. I think we'd need a recess to examine it, and the clerk could tell us whether it's in order. My understanding is that it is in order to bring a motion to amend 40.1(1) of the Highway Traffic Act.
Mr Bisson: Yes, I understand that. I know what my rights are under the standing order. My question is, as I read that, does that mean that the owner of a vehicle or rental company could be held liable? That was my question, and I thought I heard a yes. And if that's a yes, then we need to fix that.
Mr Bisson: That's right. So we would need yet another amendment to your bill that you didn't provide us with in order to make sure we don't go where you don't want to go. So yes, I would appreciate it if you could take a look at that as an amendment that Mr Gill or I could put forward so we make sure we don't end up down that road.
Mr Bisson: I can be helpful, Chair. Here's what we're going to do. As I understand it, we can revert back to section 1 and vote on it because we've decided we don't have to remove that section. We can fix the problem of the ability to collect the fine by withholding the sticker by making amendments to section 2. So we can go back to 1, deal with 1, and then we can get into 2.
Mr Gill: I move that section 2, subsection 40.1(1) of the Highway Traffic Act, as set out in section 2 of the bill, be amended by striking out "shall permit" and substituting "shall knowingly permit."
Mr Wood: Upon consultation with the ministry counsel, we thought it wasn't necessary. This makes it clear that the driver of the motor vehicle can be convicted on the basis of strict liability, but the owner or lessee of the motor vehicle is only convicted on the basis of knowingly permitting it.
Mr Gill: I move that subsection 40.1(1) of the Highway Traffic Act, as set out in section 2 of the bill, be amended by striking out "the conditions set out in subsection (2)" and substituting "the conditions set out in a regulation made under clause 2(a)."
Mr Bisson: Just if you can follow me, leg counsel, the amendment says, second line down, "be amended by striking out `the conditions set out in subsection (2).'" I go to section 2 of the bill and it says, "The conditions mentioned in subsection (1)." Am I in the wrong part of the bill?
Mr Bisson: I understand. But when I read the bill in a drafted form, 40.1(2) says, "the conditions mentioned in subsection (1)." Follow me? As I read the amendment, you're saying, "The Highway Traffic Act, as set out in section 2 of the bill, be amended by striking out `the conditions set out in subsection (2).'" It doesn't say that in the bill, so I'm just wondering why that is. It says (1).
Mr Bisson: I just have a question. What we're going to be saying is, "the conditions set out in regulation." It seems to me that we're fairly explicit in the bill in what we want to do. My first question is, if we set it out in regulation, will it not give the minister the ability to make changes that may not be the changes that you want as the drafter? Why not just leave it in the bill? Why do it by way of regulation?
Mr Gill: As I understand it, the ministry needs the flexibility in case some other conditions come up in terms of carpooling or any other type of vehicles, to give them that flexibility. I thought that we could work with the ministry.
Mr Bisson: I guess my problem is this: I'm not a big fan of giving the minister all kinds of authority to do things by way of regulation that were not contemplated by the drafter of a bill. If we accept your proposal on this amendment, it will give the minister -- your minister, or my minister in the next government -- the ability to do whatever by way of regulation, provided it doesn't break the standing orders under the regs committee.
"(2.1) A class mentioned in clause (2)(b) or (c) may be defined with respect to any attribute, characteristic or time or place limitation or combination of those items and may be defined to consist of or to include or exclude any specified member, whether or not with the same attributes or characteristics or time or place limitations.
Mr Bisson: Now you're into why I voted against your giving the minister the ability to set the regulation. As the drafter of the bill, what you've done is, because the rules say that if you give the minister the rules to set regulations under an act, we have to define what authority he or she has. We are now, by way of this section, giving the minister the authority to gut your bill. So technically now, what we have is a bill that's passed, it goes to your Minister of Transportation, your minister may choose to keep the intent of your bill alive or he or she may choose not to, or a future minister of the crown in a future government, which could be as soon as next month, could come in and say, "I don't like this bill, and by way of regulation, I'm null and voiding the bill." Why would you have done that?
Mr Kwinter: I'd like to just speak to this amendment, which I think is a good idea. First of all, I don't think you can gut a bill by regulation. I just want to get a clarification from the proposer of this bill. All of us on this committee I'm sure have been receiving correspondence and communication from people who fear that this is going to prevent them from doing all sorts of things that I don't think were contemplated in the bill, whether it be car pools or dropping people off somewhere so they can do something else, and suggesting that they have to have a licence to do that. The opportunities and the situations are so vast that it would be virtually impossible to limit them all or schedule them in a bill. So it would seem to me -- and I just want to get clarification that this is the case -- that the purpose of this is to allow the minister to make regulations, literally on a case-by-case basis, to accommodate those people who are in fact not doing any of the things that are contemplated by the mover of this bill. Is that a reasonable explanation?
Mr John O'Toole (Durham): I just want to be clear. We supported the bill in the House based on the general and broader discussion of the conveyance of people for money, and licensing, and there are some penalty things we've dealt with. Nothing in the regulations we're allowing to be created could contravene the intent of the bill. Isn't that right? The regulations can't set about to dismantle the intent of the legislation, which is to prohibit the illegal movement of people for commercial purposes. Isn't that it?
Mr Bisson: I'm going to ask leg counsel or the ministry the question. By way of the subsection, we're saying, first of all, under 40.1, that we're giving the minister the ability to define by way of regulation much of how this bill works. We're saying to specify conditions for subsection (1) -- right? -- and that would mean to say the conditions of what? Who can get charged, for example?
Mr Bisson: That's right. Who can get charged and under what circumstances? The reason we amended the bill was to specifically home in just on the driver. As I read it, we're widening this out by regulation. Am I correct?
Mr Bisson: I'm going to get to that in a second. The second thing is, "exempting any motor vehicle or class of motor vehicle from the requirements of this section." I agree with you. Your intent is to say carpools, but that could mean a whole bunch of things, right?
Mr Bisson: It gives the minister whacks of power to do what he or she decides to do and then exempt any person or class of person from the requirements of this section. That means I can decide that I want to exempt whomever, if I was minister, from being charged under this bill, including the driver, if I put that in my regulation.
Mr Bisson: Hence, why in heck are we giving the minister that power? If I was the drafter of the bill and I wanted to make sure the bill survives as drafted, if the minister wants to make those kinds of changes to gut my bill, let he or she come to the Legislature and get the support of the majority of legislators to do that.
I think, as the drafter of the bill, Mr Gill, you don't want to give the minister the regulatory power because this minister or future ministers may decide this is a bad bill and gut you by regulation. I will vote against this section as well on that basis. I will vote for your bill, but I will vote in opposition to giving the regulation. Quite frankly, I think you do not know what you're asking for and you're going to be giving a minister something you don't want to give him or her.
Mr Gill: I move that subsection 40.1(5) of the Highway Traffic Act, as set out in section 2 of the bill, be amended by striking out "the conditions set out in subsection (2)" and substituting "the conditions set out in a regulation made under clause (2)(a)."
Mr Bisson: For the sake of consistency, under this section I just want to make the same point. If you're the drafter of a bill -- and I respect you're trying to deal with the scoopers, and we all agree; we think that's a good thing. But again we're back to where we were. If I'm Minister of Transportation in the next government and I decide I want to do whatever to this bill --
My point is, I am going to vote against your amendment to this section for the following reason: I believe that you don't want to give the minister these kinds of regulatory powers because the minister could decide to basically null and void this bill by regulation or he can decide to say, "I'm going to include those classes of people, including car rental companies, by way of regulation." He can do all kinds of things that both industry and consumers would not like. Would it not be the first time that ministers have done things the public doesn't like, or is it, quite frankly, not a common sense move? I will vote against this section.
Mr Gill: I move that section 3 be struck out and the following substituted. Now, let me point out, gentlemen, that that is not precisely what it reads, so listen carefully. Let me read it again. I move that section 3 be struck out and the following substituted:
Mr Wood: I just have to make a comment on this. It is important to specify what the 180-day time period runs from. Probably what you want to say is something like, "This act comes into force on a day to be named by proclamation of the Lieutenant Governor within 180 days of the day on which this act receives royal assent."
Mr Kwinter: I just wanted to clarify. There are two variables. One is, when do you get royal assent, which could be at any time or it could never happen? Then, once it gets royal assent, when does it get proclaimed? What you've really done by adding six months from the time it gets royal assent until the time it gets proclaimed, you may be effectively killing this bill. That's the concern I have.
Mr O'Toole: I, along with Mr Kwinter, agree that it's become quite transparent when this thing is going to actually happen. We've got some regulatory sections here that would be proclaimed only when the regulations are in effect anyway, because they would do those after proclaiming, potentially. I just think a straightforward time limit is within 180 days of being passed by the Legislature, because through various mechanisms they can delay it receiving royal assent. Do you understand? In other words, if it doesn't get royal assent, it never becomes law.
The Chair: My understanding of the standing orders is that when the bill passes third reading in the House, that is one item. When it receives royal assent is strictly a distinct item, and that is when it receives royal assent obviously from the Lieutenant Governor. So the question is, do you want the 180 days, as you are proposing, to be from the passing of the third reading of the bill or from royal assent, when it is given by the LG? That's the point.
Mr Kwinter: If I can just be helpful, you can't have a law unless you have royal assent. So if you put 180 days from the time it's passed in the House, without royal assent, it's meaningless. The 180 days will come and pass and nothing is going to happen because you haven't got royal assent.
Mr Gill: I have a simpler amendment, perhaps -- I know leg counsel is drafting one -- and it's open for discussion quickly. The gist of it is that this act comes into force 180 days from the day it receives royal assent.
Mr Wood: Two points. First, I have to say that procedure supports what Mr Kwinter said, that the bill does not take effect until it receives royal assent. Royal assent is a formality. It's never withheld once the House passes a bill. The second point is, it is much more workable to do what Mr Gill has just suggested, to say that the bill comes into force 180 days after the date on which it receives royal assent. That makes it very clean as to exactly what day you mean.
Mr Wood: To be sure, I'd have to consult on this, but my understanding is that once the House gives third reading to a bill, it's a formality that the bill receive royal assent, because the Lieutenant Governor can only act on the advice of the assembly.
Mr Wood: Subject to the caveat for a formal opinion -- I'd want to hear a formal opinion from, in this case, the constitutional law branch of the Ministry of the Attorney General -- my understanding is --
The other thing I would say is, the fact is, there have been bills passed at third reading that have never been proclaimed through royal assent, because the government chooses not to. I think research would show that. My memory is not that good, but I think there was a spills bill that wasn't ever proclaimed. It would be unusual, but if the government chooses to simply not take it for royal assent -- I think you would probably find 10 bills around here that have been passed for third reading and have never got royal assent.
I don't think we have any choice, in any event. I am not a lawyer, as they say, but I don't think the Legislature can ever pass a bill saying, "This will become law regardless of whether it ever gets royal assent." That's not possible.
Mr Wood: On a point of information, what happened with the spills bill was that it did receive royal assent, as far as I know, but it was to come into force on proclamation and it was never proclaimed. You are correct that in order for an act to exist, it must receive royal assent, but the flexibility comes in whether the Lieutenant Governor proclaims it in force if there is a commencement provision that says it comes into force only on proclamation.
Mr Kwinter: I just want to get clarification from the proponent of this bill: is your amendment suggesting it will happen 180 days from royal assent or does it say "up to 180 days," so it could get proclaimed two days or three days after royal assent?
Mr Wood: As I commented earlier, it is much more workable to say the bill comes into force 180 days after receiving royal assent; not give a spectrum of 180 days but specify exactly the 180th day after receiving royal assent.
The Chair: Is there a reason for that? I'm asking the question because, as Mr Kwinter indicated, you're specifying that it can only be proclaimed on the 180th day as opposed to somewhere in between. Is that what you're seeking to achieve here?
Mr Wood: Actually what we would be doing is specifying an exact day rather than allowing the Lieutenant Governor the discretion of when to proclaim the bill. On the spot, I don't have the resources to give a formal opinion as to whether you can fetter the discretion of the Lieutenant Governor in proclaiming a bill. It is much cleaner and more explicit to state an exact day.
The Chair: I don't think what we're doing here is limiting the Lieutenant Governor's decision as to when it will be proclaimed; rather, it would come into force within 180 days of royal assent. That's the key here.
The Chair: For the sake of discussion, if I understand this correctly, if royal assent were given on June 1, 2003, then the bill would come into force up to 180 days after that. But I understand your point is that once it is given royal assent, it does come into force. Is that your point?
Mr Wood: No. My point is that for a number of reasons you have to know exactly what day a bill comes into force. If you say it comes into force within 180 days of receiving royal assent, you haven't answered the question of exactly what day.
Mr O'Toole: When I look at "Commencement," the section we're dealing with, "This act comes into force on the day it receives royal assent." I put to you, what day is that? I have no idea when that is. It could be four years. What if there's a change in government and they decide to just stack the bill? It's not likely to happen, but --
Mr O'Toole: That's part of the question. We will know when it receives royal assent and that could be in a day, a month, a year. It could be delayed; it could never receive it. His 180 days doesn't even start counting until that day.
The Chair: If I can reiterate Mr Wood's advice earlier, you cannot restrict the Lieutenant Governor as to the date he must give royal assent. Is that correct, Mr Wood? You can't restrict the Lieutenant Governor as to when he or she chooses to give royal assent?
Mr Wood: That is my understanding, but I have to preface it with the caveat that you're asking me a complicated question on the spot. To give a firm answer, I'd have to consult more. But that is my understanding.
Mr Kwinter: I would ask Mr Wood, while he's doing his investigation, if he could find out -- I can't recall an incident where a bill specified the time limit when it must be proclaimed. I don't know if you are allowed to do that.
Mr Phillips: Maybe I wasn't listening carefully; I just thought you wanted to give 180 days, not that you wanted it to be 180 days. I thought you would prefer this to be enacted as quickly as possible. I thought we were moving to deal with this issue. But as I understand the motion now, it would be at least six months before any action would be taken.
Mr Gill: Mr Chair, Mr Phillips is quite right in his interpretation. The ministry actually wanted nine months because of some computer programming they have to change. If this becomes law, it does take into account several changes to the computer systems and all, and they wanted nine months. Even though I wanted it to be implemented on the same day it received royal assent, practically it was not possible. So we compromised on the six-month date.
Mr Phillips: I should have been listening more carefully, because I thought you were just giving flexibility. I thought the intent was, let's get this thing done as soon as we possibly can, but in case they can't do it let's give them at least 180 days. I had been of the opinion that this thing was a crisis with people going broke. We've dealt with this at record speed; we've bent over backwards. Frankly, I think the bill was badly drafted, and we've accepted all these things to try to accommodate you. Now I find that the ministry, on a kind of leisurely basis, is going to want at least six months before they implement it. I now feel a little like I've been had. The people who have been affected by this are losing their businesses and, as I say, we've tried to deal with this in seven days. Now, by our own action, it will be a minimum of six months. What are we doing?
Mr Gill: Chair, may I ask the ministry to perhaps comment on that? My intention, Mr Phillips, is even more eager. I agree with you that it should be implemented right away. I agree with you, but let's hear from the ministry what their handicap is.
The Chair: Could I interject for a moment here? Probably within three minutes we are going to have a division bell. If this is not concluded, I will (a) need unanimous consent to continue during the division bells, and (b), if we are not done by that point this will be concluded on Thursday next week.
The experience with other similar changes to our computer systems at MTO is that there is a physical limitation in terms of the time involved in implementing these changes. Our experience has been that it takes six months to include these types of changes. There's a physical limitation we're bumping up against. To specify that it happen in less than six months would present some significant challenges in terms of implementation.
Mr Gill: Apparently the wording, based on leg counsel, has changed slightly, if I may add that to the record for members. Let me preface this by saying that this because of technical limitations in the ministry; that's the only reason I'm delaying it. Otherwise, I'd want it enacted right away.