Oversight For Human Pathogens and Toxins Act, Quarantine Act Removed, Slipped Into Budget Bill

There are few things more nefarious than when politicians pass laws to strip your rights away, or undermine democracy. It’s even worse when this isn’t openly debated, but instead slipped into a larger Bill, and it goes almost unnoticed.

This was done in the Spring of 2019, and pushed through right before an election. Have to wonder why.

In the interest of fairness, Diverge Media broke this story yesterday. A great piece of research, showing that a major regulatory check had been scrapped without any public discussion.

Looking at the timing, it’s hard to plausibly believe that the politicians weren’t aware that something was going to happen. And if they didn’t know, why not speak up now?

The NDP did make a passing objection, but it seemed to be more in the context of having an omnibus Bill pushed. She listed: “Seventh, subdivision K of division 9 of part 4 repeals provisions of the Quarantine Act. Eighth, subdivision L of division 9 of part 4 repeals provisions of the Human Pathogens and Toxins Act.” There were no specific details given as to why these were bad.

This was the public “discussion” on May 6, 2019.
A 90 second speech.

Mr. Chair, I’ll speak to subdivision K, as well as subdivision L, given their similarities.
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The proposed legislative amendment to the Quarantine Act and to the Human Pathogens and Toxins Act would streamline the regulatory process under both acts by repealing the requirement for the Minister of Health to table proposed regulations before both Houses of Parliament prior to making new or updated regulations. This will allow the minister to proceed through the standard Governor in Council process, including prepublication and public consultation in the Canada Gazette. New or updated regulations under both of these acts would continue to comply with the cabinet directive on regulations.
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The proposed amendments would put the Public Health Agency of Canada on level footing with other Canadian regulators and we will be more responsive to stakeholder needs for nimble, agile regulations that are kept up to date by facilitating the removal of outdated or ineffective regulations that may not be adequately protecting the public health and safety or may hinder innovation and economic growth.
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Our ability to have up-to-date regulations will be a benefit for the Canadian public, for the travel and transportation sectors, and for the biotech and medical resource sectors.

On May 6, 2019, Cindy Evans told a Parliamentary Committee that a provision of Bill C-97 would remove the requirement for legislative checks and balances before issuing orders under the Quarantine Act. Keep in mind, this was a BUDGET Bill, and this was buried in an obscure section.

Proposed regulations to be laid before Parliament
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66.1 (1) Before a regulation is made under section 66, the Minister shall lay the proposed regulation before each House of Parliament.
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Marginal note: Report by committee
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(2) A proposed regulation that is laid before Parliament shall be referred to the appropriate committee of each House, as determined by the rules of that House, and the committee may review the proposed regulation and report its findings to that House.
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Marginal note: Standing Committee on Health
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(2.1) The committee of the House of Commons referred to in subsection (2) shall be the Standing Committee on Health or, in the event that there is not a Standing Committee on Health, the appropriate committee of the House.
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Marginal note: Making of regulations
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(3) A regulation may not be made before the earliest of
(a) 30 sitting days after the proposed regulation is laid before Parliament,
(b) 160 calendar days after the proposed regulation is laid before Parliament, and
(c) the day after each appropriate committee has reported its findings with respect to the proposed regulation.
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Marginal note: Explanation
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(4) The Minister shall take into account any report of the committee of either House. If a regulation does not incorporate a recommendation of the committee of either House, the Minister shall lay before that House a statement of the reasons for not incorporating it.
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Marginal note: Alteration
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(5) A proposed regulation that has been laid before Parliament need not again be so laid prior to the making of the regulation, whether it has been altered or not.

Exceptions
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66.2 (1) A regulation may be made without being laid before either House of Parliament if the Minister is of the opinion that
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(a) the changes made by the regulation to an existing regulation are so immaterial or insubstantial that section 66.1 should not apply in the circumstances; or
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(b) the regulation must be made immediately in order to protect the health or safety of any person.
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Marginal note: Notice of opinion
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(2) If a regulation is made without being laid before Parliament, the Minister shall lay before each House of Parliament a statement of the Minister’s reasons.

Although the “exceptions” clause did provide some wiggle room, forcing Cabinet Ministers to bring proposed changes through the legislative process is actually a good check. It ensures that at least there is open discussion. However, given how quickly these changes passed in Parliament, their effectiveness is questionable.

Proposed regulations to be laid before both Houses of Parliament
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62.1 (1) The Governor in Council may not make a regulation under section 62 unless the Minister has first caused the proposed regulation to be laid before both Houses of Parliament.
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Marginal note: Report by committee
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(2) A proposed regulation that is laid before a House of Parliament is deemed to be automatically referred to the appropriate committee of that House, as determined by the rules of that House, and the committee may conduct inquiries or public hearings with respect to the proposed regulation and report its findings to that House.
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Marginal note: Making of regulations
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(3) The Governor in Council may make a regulation under section 62 only if
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(a) neither House has concurred in any report from its committee respecting the proposed regulation before the end of 30 sitting days or 160 calendar days, whichever is earlier, after the day on which the proposed regulation was laid before that House, in which case the regulation may be made only in the form laid; or
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(b) both Houses have concurred in reports from their committees approving the proposed regulation or a version of it amended to the same effect, in which case the regulation may be made only in the form concurred in.
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Marginal note: Meaning of “sitting day”
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(4) For the purpose of this section, “sitting day” means a day on which the House in question sits.

Exceptions
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62.2 (1) A regulation may be made without being laid before each House of Parliament if the Minister is of the opinion that
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(a) the changes made by the regulation to an existing regulation are so immaterial or insubstantial that section 62.1 should not apply in the circumstances; or
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(b) the regulation must be made immediately in order to protect the health or safeguard the safety of the public.
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Marginal note: Explanation
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(2) If a regulation is made without being laid before each House of Parliament, the Minister shall cause to be laid before each House a statement of the reasons why it was not.

The Quarantine Act also had legitimate safety mechanism stripped out, buried as a seeming afterthought in an omnibus budget Bill.

The “Budget Bill” did pass along Party lines. At the time, the Liberals held a majority, so they needed no support in ramming this through. While the NDP and Conservatives voted against it, these provisions were very unlikely to have contributed, since their was no real debate. Even now, they don’t speak up.

With hindsight, things are much clearer.

(1) https://divergemedia.ca/2021/06/14/no-debate-required-quarantine-act-changed-in-2019-to-allow-for-no-debate-before-its-use/
(2) https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=10404016
(3) https://parl.ca/DocumentViewer/en/42-1/bill/C-97/third-reading
(4) https://www.ourcommons.ca/DocumentViewer/en/42-1/FINA/meeting-208/evidence
(5) https://archive.is/WXhI8
(6) https://www.ourcommons.ca/Content/Committee/421/FINA/Evidence/EV10460698/FINAEV208-E.PDF
(7) https://openparliament.ca/
(8) https://openparliament.ca/debates/2019/4/10/jenny-kwan-1/
(9) https://openparliament.ca/search/?q=Date%3A%20%222019-04%20to%202019-11%22%20Quarantine
(10) May 6 2019 Quarantine Act Amendment
(11) https://laws-lois.justice.gc.ca/eng/acts/Q-1.1/page-6.html#docCont
(12) https://laws.justice.gc.ca/eng/acts/H-5.67/page-7.html#h-255451