Evidence of meeting #55 for Environment and Sustainable Development in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Point of order.
You do not believe me, Mr. Chair. You have that right, except that precedents support me. I probably believe you, but the reality is that precedents exist, that it is possible. If it is possible, and if it has already happened, it could very well happen with this bill too.
At the end of the day, Mr. Chair, this is not my bill, it is Mr. Cullen's. If Mr. Cullen wants to risk the bill going back to its original form when it gets back to the House of Commons, that is his choice.
I want to point out the risk. You have made your decision. I respect your view entirely. Now, if Mr. Cullen wants to take the risk, that is up to him.
Conservative
Jean-Sébastien Rochon Counsel, Department of Justice
This is in response to Mr. Warawa's comment in relation to the constitutionality. It is indeed the government's position that the bill, as currently drafted, is not supported by the legislative heads of power that are assigned to Parliament under the Constitution Act, 1867.
Conservative
Liberal
John Godfrey Liberal Don Valley West, ON
Yes, let me understand what question you just answered. You are talking about the bill in the form that was originally presented by Mr. Cullen, and that's the judgment you're making on that. You're not making a judgment on the modified package that we're talking about, are you? Which of those two options are you judging?
Counsel, Department of Justice
The position is in relation to the bill as it was presented.
Counsel, Department of Justice
Yes, that is the original bill. That's correct.
Liberal
John Godfrey Liberal Don Valley West, ON
Okay, now we have a problem with the original bill, but we're doing something about that. Are we in worse trouble or less trouble with the new bill?
Counsel, Department of Justice
Thank you, Mr. Godfrey.
It is the government's position that the amendments that are put forth today would take care of these problems.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Here's the crux.
Mr. Bigras raises good points about procedure, as do you, Chair, about changes being necessary.
Here's what we don't want to see happen. If we have changed the scope and the admissibility of the bill, yet there is agreement around the table, then if there comes a time when this bill comes back to the House of Commons with a disagreement about some of the contents in it because there is then a debate over one of three phthalates, any member in the House can stand up under the guise of admissibility and say, “I don't like this bill”--but really what they mean is that they just disagree on the chemical component--and wipe out the bill entirely. That would be a greater tragedy.
I'll keep this very short. Regarding the constitutionality of the bill, one of the things that all members of Parliament do when drafting bills is check for constitutionality using the advice of the House of Commons. We didn't pull this out of thin air. We've gone through that check. So there is a difference of opinion, I would suggest, between the government officials present here today and the advice that we get from the House of Commons, upon which we all rely.
I'm not into having duelling banjos between lawyers as to what is constitutional and what is not, but we've gone through the check already. It's not as if we didn't consider constitutionality in this.
To summarize, I'm not sure if we can establish a gentlemen's agreement to have a difference of opinion here about the different elements that are listed, but to allow it to go ahead through the House even though there may be a moment at which we've clearly expanded the scope of the bill to include a better mechanism. We didn't expand the scope of the bill to change its nature or to try to do something radically different. We're just using a better tool, on which we have advice from department officials, and which, there is some agreement around the table, is a better tool to use.
Liberal
Geoff Regan Liberal Halifax West, NS
My question is for Mr. Rochon.
Is it not the case that CEPA falls under the heads of authority of the federal government regarding regulation of materials that may be toxic? And if that is the case, why doesn't this bill? What is wrong with it constitutionally? That's what I want to understand better.
Counsel, Department of Justice
Thank you, Mr. Regan.
The position is that the bill has some problems with the heads of power insofar as it can't fall under the criminal law power. If you consider Bill C-307, you'll notice that the regulation-making powers don't specifically refer to CEPA. That being said, we must understand that the authority to make the regulations that are currently sought in clause 3 of Bill C-307 would be under the bill itself.
Counsel, Department of Justice
It is a long-standing principle that under criminal law you require three criteria to be justified under this head of power, the first one being a criminal law purpose that is backed by a prohibition and a sanction.
Liberal
Geoff Regan Liberal Halifax West, NS
You're saying that by bringing it under subsection 30(1) of the Food and Drugs Act and section 6 of the Hazardous Products Act, you overcome that problem. Is that what you're saying? That is a legitimate way of doing this?
Counsel, Department of Justice
That's correct, Mr. Regan. These statutes have already been through the....
