Thank you, Mr. Chair and members of the committee.
Before I begin my own comments today, I want to flag for you that I understand the committee will be receiving a letter from former Justice of the Supreme Court of Canada Gérard La Forest, in which Justice La Forest expresses his concern regarding the risks involved with removing the term “toxic” from CEPA.
I would suggest to you that Justice La Forest is perhaps the most distinguished jurist of environmental law in Canadian history. I hope you'll give very close consideration to his letter when you get it.
To summarize my comments today, the basic opinion I want to put forth is that removing some or all references to the term “toxic” in CEPA would constitute a radical conceptual restructuring of this act. It would destabilize this area of the law, provoke litigation, and almost certainly invite a challenge to federal constitutional jurisdiction.
The concept of toxicity is in fact a keystone concept in CEPA. As Justice La Forest made clear in his majority judgment in the Hydro-Québec decision, the concept is obviously the central concern of what is now part 5, but it's not limited to that part. In fact, it's an overarching organizing principle of the statute as a whole. Thus, for example, four paragraphs of the preamble refer to the word “toxic”. Section 2, which sets out the overall statutory agenda, also relies on the concept of toxicity in delineating the Government of Canada's responsibilities under CEPA.
The concept of toxicity is central in CEPA, and the administration, the regulated community, and the courts have had a chance to at least grapple with elucidating, clarifying, and understanding this concept.
The Supreme Court of Canada, for example, provided detailed guidance on the meaning of the term “toxic” in CEPA in Hydro-Québec. Several lower court judgments from across the country have also considered CEPA provisions that include this terms.
Why am I telling you this? It's because we now have a body of case law that interprets this term “toxic” in CEPA. If you remove this term, you remove the clarification and certainty in the law, and what we've seen over and over again is that as soon as you create uncertainty in environmental statutes you have litigation.
I think it's important for us all to remember that the structure of corporate law and economics in Canada creates very strong incentives to litigate against environmental legislation if there seems to be any opening there. Recall that corporate directors have a legal duty to act in the best interests of the corporation and to maximize shareholder profit. Obviously, if there's a chance to avoid or even delay compliance with potentially costly environmental provisions, corporate directors have to give serious consideration to this.
And the history of environmental legislation in Canada has been a history of litigation. We've seen it over and over again, with Ontario's Environmental Protection Act, with the pesticide bylaws that are now across the country, with “polluter pays” provisions in the Imperial Oil case This is a highly litigious area.
Obviously, responsible counsel only litigate where there's at least a colorable argument to be made. What I'm saying here is that if you remove toxicity as a keystone concept from CEPA, there's an excellent reason to litigate, because courts won't know what this new term means.
I think this issue of uncertainty is perhaps most serious in the area of constitutional jurisdiction. I know you've already heard about this, so I'll try to be brief.
Hydro-Québec is the seminal case on federal constitutional jurisdiction over CEPA. You'll see it referred to over and over again in the scholarship and in the case law: that Hydro-Québec settled this question. The difficulty is that Hydro-Québec interpreted and upheld an act that was founded in the concept of toxicity. Indeed, the term “toxic” occurs no fewer than 205 times in that judgment. The holding itself, or the ratio decidendi, as we call it, was based on the use of the term “toxic” in Hydro-Québec. La Forest himself said that, above all, Hydro-Québec was concerned with the term “toxic”, and in upholding the act, he held that the limitation of federal regulation to substances that have been assessed to be toxic meant it didn't impinge too far into provincial powers.
Now, I want to be very clear that I believe it's quite clear the federal government has constitutional jurisdiction to regulate the kinds of substances that are dealt with under CEPA. Unfortunately, my opinion doesn't govern; my opinion is immaterial in that respect.
What I'm trying to say is that by removing this concept, in my opinion, you're going to provoke constitutional litigation. I think that would be a profound waste of money, energy, and resources in an area where we urgently need to get on with the business of implementation.
Those are my comments. Thank you.