Environment Committee on Feb. 11th, 2008

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

Mr. Castrilli, would you make the same comments with respect to the information provided by the dissenting judges? With respect to the Quebec Hydro trial or decision, did the dissenting judges influence the message that you delivered today?

[Joseph Castrilli]

I certainly took those points into account, but I was primarily influenced by the majority judgment and the manner in which the majority basically set out a road map for establishing the constitutionality of CEPA based on the criminal law power--an exercise that I think was expanded in the firearms reference about four years later. So I pretty much took my template from the majority decisions, notwithstanding the fact that there was dissent in the case of Hydro-Québec.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

Thank you to this distinguished panel. Not being a lawyer, I must confess to some level of intimidation in terms of the wisdom and experience that's being brought before us today.

I'm also very interested in the process that we go through here in Parliament in regard to establishing constitutionality, and also establishing a certain level of unknowns regarding what will be tested in court and what will stand up in court. I'll encourage our witnesses and also committee members that we don't necessarily need to wait for lawyers to agree on this fine point before Parliament acts. I think Canadians would urge us to take some risk on the constitutionality question in order to achieve the targets and goals that Canadians endeavour to have.

In the place of this, we are seeking in this bill to establish national targets based upon scientific measures in order to mitigate the effects to our society and our environment of dangerous climate change. I've not yet heard testimony today saying that the attempt through this bill is a deed that Parliament shouldn't perform. I get a suggestion--there are very different tones and approaches to how this bill is being considered--of the question of whether the witnesses were seeking ways to improve this bill or whether witnesses were seeking ways to prove themselves right and defeat this bill on constitutional grounds.

Mr. Hogg, I'll start with you. There were some questions of specificity in your argument that as it stands now, the bill is not sufficiently specific for a court to feel comfortable with it in terms of the Constitution. From the testimony you've heard today, or perhaps from some other readings you have, do you believe that by including greater specificity, including some of the language out of both the favouring decision in Hydro-Québec and the dissenting one, specifics could be brought to this piece of legislation to, as Mr. Elgie said, move the constitutional meter closer to favourability?

[Prof. Peter Hogg]

In principle, yes, I do.

What, to me, is wrong with the legislation, both under the criminal law power and the peace, order, and good government power, is it sets a target, a target that we know will be extraordinarily difficult to achieve, that will require very pervasive regulation, and that simply allows the Governor in Council to invent whatever regulations it chooses in order to accomplish the goal.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Let me stop you just for a moment on that first point, because I looked at that in your testimony. I think today we were seeking testimony with regard to its constitutionality, not the assertive nature of the bill or the aggressive nature of a target that the panellists have brought here today, which is whether the measures being considered are effective. I'll remind some of my government colleagues that some of the measures considered here in this bill were the same measures invoked in the Turning the Corner plan. The same mechanism is being considered. The ambition of the target is actually at question, unless you will provide some experience and knowledge in terms of what is actually required for Canada's goal-setting targets. But I don't believe that's your area of expertise. Am I correct?

[Prof. Peter Hogg]

No, I have no comment on the ambition of the target, except in the sense that we know the target will call for a wide range of severe regulatory measures, and all that is being handed to the Governor in Council without any direction.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

So to calm that fear down, again back to the specifics of what is allowed for this bill to be included...and paragraph 10(1)(a) goes through some of the measures that can be considered by government. If we were to adopt Mr. Elgie's commentary that we could give greater direction to government, to restrict government's powers when invoking the means necessary, to allow, as it is already written into the bill, the cooperation or agreements with provinces and territories, that will allow a constitutional court to have some greater confidence in the bill. Is that correct?

[Prof. Peter Hogg]

Yes. Absolutely, it will.

What the Hydro-Québec case said was that if part of the criminal prohibition is going to be designed by the executive, then Parliament itself has to provide the guidelines to carefully tailor the power and not simply hand it over to the Governor in Council.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

My last question is to Mr. Elgie.

I will go back to the orientation of our work here at committee with the contribution of the witnesses. There are two orientations. One is the attempt to disprove the merits of this bill, and I can almost see the glee amongst my Conservative colleagues when hearing Mr. Hogg's initial presentation as to its constitutionality. The second is the orientation to improve the bill, the orientation to make this bill a functioning and viable thing.

In accordance with what Canada recently agreed to on the international stage, I think the point is well made. Canada has gone forward and given what's left of its good name in terms of environmental performance to the world community to say that we have agreed in principle to these targets.

This bill is seeking to make that real, to make that live. What confidence level do you have in the ability to incorporate some of the measures that you've considered, and some of the other witnesses, to make this a viable mechanism to achieve the aspirations that Canadians are looking to have and to fulfill our international agreement?

[Prof. Stewart Elgie]

Responding to the spirit of the question, which is not whether it's the right target but how you get to that target, it seems to me that any lawyer who tells you they're certain of a constitutional outcome is a poor lawyer. But I think the exercise that seems to me most useful is to ask what you could do to this bill that would make it likely to withstand constitutional challenge, because almost every major federal environmental statute in the last 15 years has been constitutionally challenged.

So your goal should not be to avoid constitutional challenge, because then you'd never legislate. The Environmental Assessment Act, the Fisheries Act, CEPA, the ocean dumping act, and no doubt the Endangered Species Act--all of them are going to be challenged. And by the way, none of the environmental ones have been struck down since the mid-1970s, so the federal government has succeeded on almost all of them. But it doesn't mean they'll always succeed. You need to be careful with the drafting.

So in terms of how you draft it, I think the kinds of things we've talked about would substantially increase the likelihood of success. I agree, really, with the essence of Professor Hogg's point , and with Mr. Castrilli's, which is to say that we know a lot more about the boundaries of the criminal law power. The peace, order, and good government power is more amorphous. The court has laid out a less clear road map for that, so it's harder to be as certain. With the criminal law power, they've laid out a relatively clear road map, so you can have a higher degree of confidence in whether you're fitting within that.

So follow the road map that's already been set out. It actually wouldn't be that hard, because really if you want to restrict the powers, you have two models you could use. You could simply take the regulation-making section from CEPA dealing with how you regulate toxic substances, which is the same one you'd use if you regulated under CEPA, and just graft it in, or you could take the shorter list in Bill C-288, which is the same kind of stuff: limits on the amount of gases that may be emitted; performance standards; regulating the use and production of equipments, fuels, vehicles; emissions trading; the same kinds of things that are likely to be the core tools that Parliament is going to use. Just draft them in. That drafting has already been done, as well as I think some of the other things we've talked about, like making reference to CEPA.

The one thing I would add is that if your goal is to piggyback on CEPA, which has already been constitutionally upheld, there are two ways to get there. One of them is, as Mr. Castrilli said, simply to frame this bill as an amendment to CEPA. I haven't thought through all the changes that would need to be made to get there, but it strikes me that you might have to make a bunch of changes to draft this as an amendment to CEPA, but maybe not. He may have thought it through.

The other way to do it, though, is simply to say in this bill that the regulations to achieve this target may be made under CEPA. There's nothing wrong with saying that you may make regulations to achieve the purpose of this bill through another statute of Parliament. You could explicitly say that. It would be five words. By doing that, you would have incorporated the vehicle of CEPA, which has been constitutionally upheld.

So some changes would definitely strengthen the constitutional hand of this in a significant way, and those changes could just be taken by grafting language that's already been drafted and passed by Parliament.

[The Chair, Conservative, Bob Mills]

Thank you very much.

Members, I'm going to see the clock backwards. I've seen the Speaker move it forward; I'm going to move it back and give Mr. Harvey a seven-minute question period.

I trust that meets with your approval, Mr. Harvey.

[Luc Harvey, Conservative, Louis-Hébert, QC]

Thank you for being here today. I feel it is rather unfortunate that we have so little time to talk, because there are indeed so many questions to ask, particularly as far as the Constitution is concerned, and as to just how far the federal government can go in this regard.

Clearly, Bill C-377 is better than what the Liberals had scribbled out on a napkin when they opted for Kyoto. We are talking about six and a half pages here, including both the French and English versions, a bill that commits Canada to reducing greenhouse gases by more than 53%, which is covered in three and a half pages. We can see the scope of the research carried out by the NDP leader and today we have learned that his bill is not even constitutional. It is rather sad.

I have a question. We can take advantage of this, as we have Mr. McGuinty here, who is the brother of the Premier of Ontario. If the Canadian government wanted to force Ontario to close its seven coal-fired plants tomorrow morning—the main source of greenhouse gas emissions in Canada comes from coal-fired plants—how could this be done?

It is a simple question, addressed to Mr. Hogg.

[Prof. Peter Hogg]

Under the bill as it now stands, if it were not limited in the kinds of ways that Mr. Elgie and Mr. Castrilli have suggested, and if it were valid, the Governor in Council could direct that the coal-fired plants that generate electricity in Ontario be closed and be replaced with nuclear plants. That, after all, would be a measure that would have the effect of reducing greenhouse gas emissions.

Although obviously no federal government is going to do such a thing, I think it does illustrate, with respect, how very broadly this bill would empower the Governor in Council.

[Luc Harvey, Conservative, Louis-Hébert, QC]

Would it be possible, as far as the Constitution is concerned? Could Ontario say that it is not possible or that they do not want to move so quickly, in 5 or 10 years?

[Prof. Peter Hogg]

There has been a little bit of inconclusive case law on the degree to which a federal law can bind provinces, but most of the cases say that if a federal law is passed within the scope of a federal power, it can be binding on the provinces.

Take, for example, the GST legislation, which did not impose a GST on the provinces but did impose on the provinces the obligation to collect the GST for the federal government when people were engaged in the supply of services that would otherwise require the collection of the GST. Alberta objected to that. It was challenged and went to the Supreme Court of Canada. The Supreme Court of Canada said that when Parliament was exercising its taxing power, it could impose obligations on the provinces.

Now, that's a rather trivial example, because this doesn't come up very often about the federal Parliament. But if the bill were constitutional--and I'm saying that in its present form it is not, but if it were constitutional--then yes, I believe it could close down Ontario's coal-fired electricity generating stations.

[Luc Harvey, Conservative, Louis-Hébert, QC]

As we know, Quebec is in the process of building a new electrical power station. Could this bill go so far as to force Quebec to sell its extra power to Ontario in order to force that province to shut down its coal-fired plants?

[Prof. Peter Hogg]

You're pushing me a little way there. I'm not sure quite how many consequential kinds of laws could then be passed if....

Obviously that is not directly associated with the production of greenhouse gas emissions, although you're saying it's a consequence of something that is a direct reduction of greenhouse gas emissions. So I'm not sure of the answer to that one.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Harvey.

I guess that's something like the question “Do angels have wings?” They debated that one for 100 years, I understand, and concluded at the end that some angels do and some angels don't.

[Voices]

Oh, oh!

[The Chair, Conservative, Bob Mills]

So that was probably a good answer.

I'd like to thank our witnesses and thank members.

Before I close the meeting, I would remind members that we do have Mr. Elgie's students here. They would like to have a chance, I believe, to meet with us. Certainly if any members can stay, I'd appreciate it.

Thank you. We are adjourned.