Thank you very much.
I'd like to briefly address the issue of the term “toxic” and some of the concerns that have been raised by some of the other witnesses through the CEPA hearings.
I think it's important to first understand the meaning of the word “toxic”, both in terms of CEPA and in other contexts. The term is not, as some have suggested, limited to the idea of being acutely poisonous to humans. This limited definition is inconsistent with both the scientific and the publicly understood definitions of the term. The industry's concern would appear to assume that “toxic” relates only to acute instances of human health, whereas a substance can also be toxic to the environment, as is the case with some of the examples that industry has raised. It may also relate to human health via the environment, as would be the case, say, for a substance that is persistent and bioaccumulative, for example.
The industry's position seems to overlook that toxicity relates to dose. The term “toxic” in CEPA refers to a range of substances that, even under the industry's definition of harmful or poisonous, are indeed toxic in particular contexts. For these reasons, the application of the term “toxic” is quite appropriate for the regulatory approach of CEPA.
Second, there are sound regulatory policy reasons for maintaining the toxic designation. There are substances currently managed by CEPA that have been regulated for more than three decades--for example, PCBs. These substances, as well as more recently regulated chemicals--PERC, TCE, vinyl chloride, and many others--are included in the list of toxic substances and are bound up as well in the Government of Canada's toxic substances management policy, which remains the core policy for regulating dangerous substances.
Internationally, “toxic” is the term used to describe substances regulated by agreements that Canada is a party to, including the Stockholm convention on persistent organic pollutants, the Rotterdam convention on hazardous chemicals and pesticides, and Agenda 21, agreed to at the Earth Summit in 1992. Calling toxic substances something else would lead to a discrepancy between CEPA and the surrounding administrative and regulatory regimes for managing these substances, both in Canada and internationally.
Finally, from the public's perspective, there's a shared understanding, even if subconscious, that a toxic substance is among the worst. There's a shared expectation that government will deal appropriately with these substances, and removing or weakening the term may thereby reduce the impetus for proper regulation of harmful substances.
The other aspect I wanted to explore with you is whether watering down the term “toxic” would endanger the constitutionality of CEPA. Our position is that it's well-established law that CEPA has the necessary constitutional authority to regulate environmentally harmful substances. However, given the history of this and other environmental law statutes, it's virtually beyond doubt that if any legal opening is provided, constitutional litigation will ensue. I believe such a challenge would fail, but it could easily entangle the federal government and other parties in long and expensive legal battles, siphoning off badly needed resources that could better be used to administer the act.
If the term “toxic” is watered down, I believe the risk of such litigation is significant. In this regard, I would encourage the committee to consider the Hydro-Québec case, which is the Supreme Court's most significant ruling in this area of law. This case determined that CEPA's regulatory provisions lie properly within the federal jurisdiction. Had the split court gone the other way, as lower courts had held, the regulatory provisions that form the basis of CEPA's effectiveness would likely have been struck down.
My written submission goes into greater detail about this case, but it is absolutely clear that “toxic” was a feature of the reasons that the federal government was deemed to be justified in using the criminal law power to regulate under CEPA. The judge draws on domestic and international precedent concerning substances and management regimes for toxic substances, and it's clear that the judgment places great weight on the fact that the law deals with substances that are deemed toxic. In common parlance, it was held that because this law deals with things that are toxic--not just any old substances, but toxic substances--the law is legally sound, constitutionally.
The dissent in the judgment also focused on the term “toxic”. Put simply, had the word “toxic” not been present in CEPA to provide specificity, this may have increased the ambit of the legislation, perhaps strengthening the minority's view that the law was unconstitutional.
Returning to another point that was made earlier, about the term “toxic” containing both a human health and an environmental component, Justice La Forest notes in the Hydro-Quebec case the importance of reducing pollution, not only for the purposes of human health, but also for environmental protection. The ruling also addresses the dosage issue, noting that the quantity, concentration, or condition can render a substance toxic.
Hydro-Quebec settled the issue of the constitutionality of this section of CEPA. It's worth asking whether we should be providing an opening for another challenge that could easily bog down implementation of the legislation for years to come.
For all of these reasons, I would submit to the committee that it is both unnecessary and dangerous to remove or weaken the term “toxic” in CEPA. Industry concerns should best be met by communicating effectively with the public about the nature and usage of the substances placed on the market, and by the fair and efficient administration of CEPA.
Thank you very much.