Environment Committee on Feb. 11th, 2008

[James Hughes]

I have to say that I don't have responsibility for the EU ETS, so I'm afraid I can't speak in detail. But I think one of the lessons, which Vicki touched on as well, has been in terms of the cap that's set. I think, as we already heard, we've had some teething troubles in phase one, where it was over-allocated, and the commission took very welcome action to ensure a tougher regime in phase two. We now have the opportunity of a review of the directive to make that further progress for 2013 and beyond. I think the key has to be to make sure that emissions trading works properly to secure real emission reductions.

Certainly, the proposals that the commission has put forward so far for that third period are very encouraging, and I would support the comment that was made about the benefits of having a central EU-wide cap. So instead of member states actually coming forward to the commission with proposals for their own cap—and the U.K. has tended to be quite stringent in terms of the cap it seeks to set for the U.K.—I think it's very useful actually to have the EU set that cap centrally and be able to make sure we're seeing an increasingly tighter cap over time, which, as you know, will help to guarantee emission reductions.

[The Chair, Conservative, Bob Mills]

I'm sorry, Mr. Watson, but we do have to call this. We have five more witnesses coming before us.

I certainly want to thank the three of you for a great job. I know the members may not have got all their answers, but at least they got a good idea of what's happening in other places.

Thank you very much.

I now ask the five new witnesses to come forward.

I would remind members that we do have five witnesses, and this is going to be about the constitutionality. We have an excellent group of witnesses. It is just too bad we don't have time for each one of you to have a whole session. I would ask you, if you could, to limit yourself to approximately five minutes. That will allow our members to ask the maximum number of questions.

I do want to welcome the students who have joined us here. I've known Mr. Elgie for some time, and I'm sure that you're learning lots from him. Hopefully you will learn something here today from our excellent panel of witnesses as well.

If we could proceed, we will go in the order printed. Please keep it to approximately five minutes so that members will have an opportunity to ask questions.

We will begin with Theresa McClenaghan.

[Theresa McClenaghan, Executive Director and Counsel, Canadian Environmental Law Association]

Thank you, Mr. Chairman.

It is my pleasure to appear at the committee's invitation. With me is Mr. Joseph Castrilli, who is also a lawyer with the Canadian Environmental Law Association. I will speak very briefly, with a couple of introductory comments, and Mr. Castrilli will use the bulk of our five minutes or so to highlight a couple of the main points we've addressed.

We were asked to look at the constitutionality of this bill, and that's the specific context for our comments. I should add that the Canadian Environmental Law Association is a 38-year-old, federally incorporated, not-for-profit organization, and it is also an Ontario legal aid clinic. We are strictly non-partisan. We provide advice with respect to proposed and possible law reform, both federal and provincial--and municipal for that matter. We do that with all political parties.

In our efforts we are always supporting multi-jurisdictional work within Canada's constitutional framework. We advocate that there's an important role for municipalities, provincial governments, and for the federal government. We do our work in that way because different scales of effort matter in different issues. This is certainly one of those areas where that is true, where efforts by some of Canada's large municipalities are important, as well as provincial governments and the federal government.

We also will be pleased to assist the committee further after our brief overview and to provide our suggestions and advice as to possibilities going forward.

With that, I would like to ask Mr. Castrilli to highlight two of the heads of power that we addressed in our brief.

[Joseph Castrilli, Counsel, Canadian Environmental Law Association]

Thank you, Mr. Chairman, members of the committee.

As we noted in our pre-filed written submissions, the subject matter of Bill C-377 can be characterized as the reduction of greenhouse gas emissions so as to contribute to the protection of the global climate system and to curb the threats posed to it in Canada. The methods by which Bill C-377 proposes to address that subject matter are a combination of regulatory, economic, fiscal, and cooperative measures.

In the time available for our opening comments, I'm just going to focus on two heads of power: peace, order, and good government, and the criminal law power. I will also address briefly certain constitutional questions related to Bill C-377 arising from existing federal and environmental legislation.

With respect to peace, order, and good government, this, as the committee knows, is a residual power reserved to Parliament when a matter does not come explicitly within the classes of subjects assigned to provincial legislatures, or otherwise to Parliament. Therefore, reliance on it to uphold the regulatory limits or emissions trading authorities that are not really spelled out in Bill C-377 could have a major impact on provincial jurisdiction to act in this area, and therefore might not find favour with the Supreme Court of Canada.

However, peace, order, and good government would appear to be the best head of power to rely upon to uphold a more explicit emissions trading and offsets authority than exists in Bill C-377 at the moment, because such a regime might be better capable of being clearly ascertainable through the application, for example, of sector-by-sector measures, and therefore be potentially least intrusive of provincial jurisdiction. Peace, order, and good government would appear to be less likely to find favour with the Supreme Court as a basis for upholding the constitutionality of the regulatory limits authority of Bill C-377 under any circumstances because of the potential for major impact on provincial jurisdiction to act in a host of areas.

With respect to the criminal law power, in light of the Supreme Court of Canada decision in Hydro-Québec, the criminal law power would be the head of power most likely to uphold the constitutionality of the regulatory provisions of Bill C-377. This would appear to be the case even if the regime were complex so long as the bill was amended to make it clear that, like the Canadian Environmental Protection Act, the constitutionality of which was upheld in the Hydro-Québec decision, it is only addressing a limited number of substances--in this context, greenhouse gases.

Moreover, greater particulars would be necessary in Bill C-377 in order to determine whether, or the extent to which, the regime of regulatory limits--or emissions trading, for that matter--could be placed squarely within the line of cases decided by the Supreme Court since the mid-1990s that have upheld complex federal regulatory regimes under the criminal law power.

The last matter I wish to deal with very briefly is constitutional questions in light of existing federal environmental law. Bill C-377 is meant to be a stand-alone law and is silent on any relationship that might exist between it and the Canadian Environmental Protection Act, 1999, relating to substances causing or contributing to climate change. However, whereas CEPA 1999 lists in schedule 1 of that act--that list is known as “List of toxic substances”--the six greenhouse gases that are identified in the Kyoto Protocol, Bill C-377 is silent on which greenhouse gases it might apply to and how these substances are to be characterized.

In the circumstances, some reconciliation of Bill C-377 and CEPA 1999 should or could be considered. This could include making Bill C-377 a series of amendments to CEPA 1999 rather than a stand-alone statute. This would allow Bill C-377 to take advantage of the constitutional testing to which CEPA has already been subjected. This reconciliation also could avoid some of the jurisdictional confusion that might otherwise ensue if Bill C-377 were enacted as is, in light of the fact that greenhouse gases are already identified as toxic substances under CEPA 1999.

In the alternative--lawyers always like to have an alternative--and as we've suggested above, greater particulars should be considered in Bill C-377 itself if the preference of Parliament is to keep the bill as a stand-alone law. In this regard, I'd suggest three broad areas, and I suspect that in the questions that follow I will have a chance to elaborate: first, identify the greenhouse gases the bill applies to; second, define precisely the situations or activities where emissions are to be controlled or prohibited; and third, make the prohibitions subject to penal consequences.

I'd be happy to answer any questions the committee might have at the appropriate time. Thank you.

[The Chair, Conservative, Bob Mills]

Thank you very much.

I should mention that Mr. Newman from the justice department is here to answer any questions as well.

Mr. Hogg, please.

[Professor Peter Hogg, Scholar in Residence, Blake, Cassels and Graydon LLP]

Thank you, Mr. Chair.

You have my written submission. For the purpose of the translator, all I am going to say orally is the little piece under credentials on page 1 and the conclusion on page 4. That's all I will say orally.

Mr. Chair, I am a professor emeritus and former dean of the Osgoode Hall Law School of York University and the scholar in residence at Blake, Cassels and Graydon. My field of expertise is constitutional law, and I have written extensively in the field, including the book, Constitutional Law of Canada. Those are my credentials.

Here is my conclusion.

[Some hon. members]

Oh, oh!

[Prof. Peter Hogg]

I'm jumping to page 4.

[Professor Peter Hogg, Scholar in Residence, Blake, Cassels and Graydon LLP]

The constitutional problem with Bill C-377 is that it leaves the reduction of greenhouse gas emissions solely to the regulation-making power vested in the executive. The only direction given to the Governor in Council as to the nature of the regulations is that they must be “to carry out the purposes and provisions of this Act” and “to ensure that Canada fully meets its commitment under Section 5”—the section on the targets for 2020—and there is a later target as well.

This extraordinarily broad and sweeping regulation-making power purports to authorize any regulation that would have the effect of reducing greenhouse gas emissions. Such regulations could potentially reach into every area of Canadian economic—and even social—life. The bill enacts no restrictions as to the kinds of laws that are contemplated or the kinds of activities that can be regulated. Such a sweeping grant of authority to the executive is unprecedented outside of wartime and should be a matter of political concern, quite apart from the constitutional issues. However, the constitutional issues are all that I'm concerned with, and they are, in my view, enough to defeat the legislation.

First of all, to take the two heads of power identified by Mr. Castrilli, Bill C-377 is outside Parliament's power over criminal law because that head of power—in addition to a criminal purpose, which it has, being the prevention of global warming and the protection of the environment—also requires a prohibition and a penalty. What the Hydro-Québec case said was that if any part of the prohibition and penalty is to be delegated to the executive to design and enact, the delegation must be “carefully tailored” so that Parliament at least provides the guidelines for the creation of the new criminal offences. Bill C-377 provides no guidelines whatsoever as to the criminal offences that would emerge from the regulation-making power of the Governor in Council.

To take the second head of power identified by Mr. Castrilli, Bill C-377 is also outside Parliament's power over peace, order, and good government because the national concern branch of that power authorizes laws relating to a matter of national concern—and of course the reduction of greenhouse gases is a matter of national concern—only if the matter is sufficiently distinct to distinguish it from matters of provincial concern. The vagueness—and this is basically the exact same point again—and the breadth of Bill C-377 have the potential to reach deeply into many fields of provincial authority. Obviously, the bill can deal with almost all human activity that contributes to greenhouse gas emissions.

So without more careful definition of the kinds of regulations that are contemplated, so as to make a distinct matter that the bill addresses, the bill is outside the national concern branch of peace, order, and good government.

My conclusion is that unless the bill is changed in the ways that Mr. Castrilli suggested in his closing phrases—and these would need to be quite radical changes—the Parliament of Canada simply lacks the power to enact Bill C-377. If Parliament were to enact the bill, it would be struck down by the Supreme Court of Canada.

That concludes my submission, Mr. Chair.

[The Chair, Conservative, Bob Mills]

Thank you very much—and congratulations, as I didn't think lawyers and politicians could stay on a timeline like that. You're at exactly five minutes and three seconds. So well done. Congratulations.

[Prof. Peter Hogg]

Thank you, Mr. Chair.

[The Chair, Conservative, Bob Mills]

Mr. Turmel, please.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

I will start for the Canadian Bar Association and then Mr. Turmel will conclude.

I'd like to thank the committee for inviting the Canadian Bar Association to appear with respect to Bill C-377. We appear today on behalf of our national environmental, energy, and resources law section, the members of whom represent a broad range of interests related to environmental law from every part of Canada.

The Canadian Bar Association is a national association representing over 37,000 jurists across Canada. Amongst our objectives are improvement of the law and improvement in the administration of justice. It's in that optic that the section has assessed this bill.

Mr. Turmel is the secretary of that section, and as a lawyer from Montreal, he specializes in energy and climate change law.

You have received a copy of our letter analyzing the bill, and I'm going to ask Mr. Turmel to address that in greater detail.

[Andre Turmel, Secretary, National Environmental, Energy and Resources Law Section, Canadian Bar Association]

Thank you.

Good afternoon, Mr. Chairman and all members.

My name is Andre Turmel. I'm a partner at the law firm of Fasken Martineau in Montreal. I'm going to address you in French in the following presentation.

Bill C-377 addresses Canada's non-compliance in implementing international treaty obligations, specifically in regard to climate change. The CBA Section is certainly concerned about the serious consequences of climate change, and about Canada's failure to implement the Kyoto Protocol as a breach of Canada's international obligations. However, we believe that Bill C-377 should not be passed in its current form. Rather than the proposed legislated targets, the CBA Section urges the government to take immediate steps to meet Canada's international environmental legal obligations to address climate change.

International treaties are the primary tool used by the international community to promote collective action on global environmental problems. Canada is a party to the Vienna Convention on the Law of Treaties, which provides in article 26 that, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” International customary legal norms from as long ago as 1938 recognize a duty among nations to prevent transboundary pollution and environmental harm.

More recently, there was the Teck Cominco case which was decided by a U.S. court of appeal. It ruled that the United States had administrative responsibilities with respect to a Canadian company that was emitting on American soil.

At this time, Canada is entering into an increasing number of international agreements addressing environmental issues. The CBA has urged federal, provincial and territorial governments to cooperate to implement these international agreements in a timely and complete manner, according to their respective areas of jurisdiction. Implementation of international conventions and obligations under international law is a matter of support for the rule of law.

I would now like to make a few comments about Bill C-377. This bill is intended to rectify Canada's non-compliance with the Protocol. It would introduce ambitious, and on the basis of current experience, likely unattainable, deferred targets. If legislated targets are to be adopted, they should be linked to, and coherent with current targets in international law. The existence of two, unrelated and incommensurate standards would likely create confusion as to the role of international law in domestic environmental law, and would downplay the importance of Canada's legal obligations under the protocol and other international treaties.

I would now like to list some of the legal consequences should Canada fail to comply with the Kyoto Protocol.

The protocol's Marrakesh Accords address non-compliance with article 3.1. The accord provides, in particular, that the enforcement branch of the compliance committee—that is how it is called—which is responsible for compliance, must ensure that Canada fulfils its obligations.

It must declare Canada to be non-compliant if it deducts from Canada's assigned amount for the second commitment period a number of tonnes equal to 1.3 times the amount in tonnes of excess emissions. It will require Canada to develop a compliance action plan including information provided in the letter that we sent to you. Finally, it can suspend Canada's eligibility to make emissions trading transfers under article 17 of the protocol.

The United Nations Framework Convention on Climate Change, the Kyoto Protocol dictating Canada's international environmental obligations and subsequent negotiated instruments within the framework of the framework convention are likely to remain the primary international legal structures to address climate change, including climate change impacts in Canada, after 2012.

While recourse by a country against Canada before the International Court of Justice is unlikely, domestic litigation against the federal government can be expected. Already, the Friends of the Earth have launched two cases against the Government of Canada with the Federal Court, one under the Canadian Environmental Protection Act and the other under the Kyoto Protocol Implementation Act adopted in 2007.

To conclude, Bill C-377 deals with a subject of profound concern to Canadians and to the international community. However, it would require an 80% target by 2050, a significantly higher target than is currently adopted by most countries, which generally require around 50 or 60% reduction targets by 2050. While high standards are desirable, if attainable, they should be linked to and coherent with target set out in existing international law. The targets in Bill C-377 are not.

We urge the federal government to take immediate steps to honour Canada's international agreements to address climate change before considering the legislated targets proposed in Bill C-377.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you very much.

Mr. Elgie, please. Welcome.

[Professor Stewart Elgie, Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual]

Thank you., I will be speaking in English today but I will try to answer questions in French if you speak slowly.

I am a professor at the University of Ottawa, Faculty of Law. I specialize in environmental and constitutional law. I'm also a recovering litigator. In my previous life I was an environmental lawyer, and I ended up arguing three constitutional environmental cases at the Supreme Court of Canada, including Hydro-Québec, and was fortunate enough to come out on the winning side of each of them, which is perhaps why I no longer litigate. You want to get out while you're ahead.

In any event, we've been asked to speak about the constitutional aspects of this bill today.

Let me, like Peter Hogg, begin by jumping to my conclusion and then work backwards from that.

My conclusion is that I would agree with the others that in all likelihood this bill, as currently drafted, wouldn't pass muster under the criminal law power. My view is there is a better than average chance it would be upheld under the peace, order, and good government power, and I can come back and say a little bit about why I think that, but the most important point I want to speak to is what could be done to the bill to improve its chances of passing muster constitutionally. I think there are some fairly specific doable things that would increase its likelihood of success.

I say that because there are two things about lawyers. The chair has pointed out one, which is that we tend to talk too long. The other is we tend to disagree, and if that were not the case we wouldn't have a profession and there wouldn't be two sides to every case. You'll get different views as to which side of the constitutional line it will fall on, but the important point is what this committee can do to make this bill more likely to be upheld as constitutional, and that's what I'm going to spend a bit of time on.

Very quickly, on the criminal law power, the other witnesses have spoken to the need to flesh out what the regulation-making powers look like, to put more flesh onto them, and I think that would be a good idea and would improve its chances.

On the peace, order, and good government power, I agree with Professor Hogg that the Supreme Court of Canada requires that a law define subject matter in a way that is single, distinct, and indivisible, to use their terms. You have to reduce a subject to its basic elements. The federal government couldn't say it legislates over the environment, that it legislates over all pollution. You have to define it in terms that are relatively narrow.

My view would be that addressing the control of greenhouse gases is reducing it as far as it can be reduced. There are only six greenhouse gases. An international treaty defines those six and the international treaty requires us to address all six. They are a fairly finite list and not never-ending. The Supreme Court has said the fact that an international treaty defines subject matter as a distinct matter is strong evidence. It is not conclusive, but it is strong evidence that will be found to be a distinct and single subject matter for constitutional purposes. In my view, it probably would be found to meet the test of single and distinct.

The biggest test the court uses in measuring whether something is single is whether or not the failure of one province to address that subject effectively would impact other provinces or other countries. Certainly in the case of climate change, the failure of any province to address a subject effectively would have far-reaching effects on other provinces and other nations.

We could say a lot more, but let me jump to what is the more important point, which is what the things are that one might think of doing that would move this up the scale of constitutionality and make it likely to be upheld. Let me point out a bunch of them that I think are all quite doable.

One is that one needs to define the regulation-making power. There seems to be agreement on that point. You don't need to look far to do that. Look to what the court has already upheld. The court has upheld the Canadian Environmental Protection Act as valid criminal law legislation, so one could look to the kind of regulation-making powers that exist under CEPA and simply incorporate those. You don't need to reinvent the wheel.

An even simpler way of doing it would be to look at Bill C-288, which I'll call the KPIA as a short form for purposes of referring to the bill. It has a defined set of regulation-making powers that are drawn from CEPA already. They are a distillation. They are less extensive than CEPA's. There are about six, and CEPA has about 20, but you could simply graft those. They talk about setting targets, setting limits, emissions trading systems. You don't need to reinvent the wheel. You could simply graft the kinds of powers that have been used in other statutes that have been upheld or recently passed by this Parliament.

The second thing: I agree that defining greenhouse gases, to make it clear it's only those six, would go a long way to putting boundaries on the subject matter, and again, the language is there in Bill C-288. It defines them as those six gases. You can simply graft them. You don't need to reinvent the wheel.

Third, I agree again, people have said that we should make reference to and tie into the existing regulatory structure under CEPA, which has been upheld by the Supreme Court of Canada as valid. That could be done very easily in the regulation-making section simply by saying, “the Governor in Council may make regulations under this or any other act of Parliament”. Simply add the words “or under any other act”, and all of a sudden you enable them to use the CEPA regulatory machinery to enact regulations to achieve these goals. It's a much simpler way than having to write the whole CEPA statute out again.

The fourth one I would recommend is that in order to improve the chances of constitutionality under the peace, order, and good government power, the preamble should simply say that greenhouse gases cross national and provincial borders and are a matter of global concern. Again, that language is in the preamble to Bill C-288. Those are the key words the court looks at, and I can tell you, even in the Hydro-Québec case, where the court found that CEPA didn't fall within peace, order, and good government, they said that had it been delineated to deal only with subjects that had an extra-provincial impact, they might have reached a different conclusion. So defining greenhouse gases as a problem that has extra-provincial and extra-national impacts will greatly improve the chances of constitutional success.

By way of clarifying provincial powers, I would recommend that you take another section from Bill C-288, which makes it clear that nothing in the statute in any way restricts or reduces the ability of provinces to legislate to address greenhouse gases. You'll find that in subsection 6(2) of the KPIA. Again, this confirms that provinces have parallel power.

Lastly—I'm probably over my five minutes and the chairman will chastise me for that—one thing that hasn't come up, which I would comment on, is that this act obligates the Governor in Council to achieve all of the targets it has set out by way of regulations. The reality of it is that Canada will meet its greenhouse gas emissions targets not only through regulations but also through other instruments such as spending, taxes, and federal-provincial agreements. So again I would suggest borrowing a section from Bill C-288, subsection 7(3), which says that in making regulations to meet these targets, the Governor in Council may take into account reductions that are achieved by other measures the Government of Canada has taken—spending, taxes, federal-provincial agreements—provided it specifies what the expected reductions are under those other measures. In other words, don't obligate Canada to meet all of its 80% reduction targets simply through regulatory measures. Allow other measures to be there, too, as long as there is rigour to make sure we get to the target.

Last of all, I would simply point out that there was some comment about the fact that getting to minus 25% by 2020 will be a long way to go. It is indeed a long way to go, but since this bill was drafted, Canada has agreed with other developed nations at Bali that this is the target we have agreed to in principle. So Canada, at the Bali negotiations, has agreed with the conference of the parties action plan of negotiating towards reaching reductions in the range of 25% by 2020. So this is now in line with our internationally negotiated commitments, at least in principle.

Thank you. I would be happy to entertain questions.

[The Chair, Conservative, Bob Mills]

Thank you. You reaffirmed my belief about politicians and lawyers.

We'll go right away to Mr. Godfrey, please.

[John Godfrey, Liberal, Don Valley West, ON]

Thank you all.

I think it's been very instructive for all of us. I also think it's been helpful to think through the solutions to the problems you've raised. Stewart Elgie's comments were very helpful in that regard.

It seems to me--and you are the lawyers, I certainly am not. I have a couple of broad questions. One is, why regulate? How urgent is this question, and would that urgency allow us to use the peace, order, and good government provisions?

It seems to me that Peter Hogg gave the show away a bit when he said in his conclusion that you'd have to argue this is as serious as wartime. Indeed, I think we're prepared to argue that. I think the question of how grave a matter this is, not only for Canada but for the planet.... I'd be very surprised, given what we know now, if one couldn't argue that case.

The other question is one of how we would do it. I think some very useful solutions have been put forward. You, of course, reminded us that the federal government has certain abilities--once we've determined this is a crisis--certain ways of doing things, through taxes, for example, which are undisputed as a way of achieving various purposes.

One that I don't think anybody mentioned--outside of the CEPA context--was the ability of the federal government to regulate standards, such as product standards--to regulate low-sulphur diesel for the whole country. We have a number of strategies on the “how” front, once we've determined how important all of this....

Finishing up my opening remarks, I was a little distressed that the Canadian Bar Association seemed to still have doubts about the science of climate change. We might well wish to incorporate--in the language of the preamble to the bill--the latest information from the climate change panel of the United Nations, but I think all reasonable people would now say that we are in a very urgent situation. We can strengthen that language.

Let me turn back to the critics. Maybe we'll start with Professor Hogg on POGG, if I may put it that way. First of all, I'd be interested in your response--if I have treated your argument unfairly about the urgency of the matter.

Second, I'd like to know if the various suggestions put forward by Mr. Castrilli and Professor Elgie--to be more explicit about CEPA, for example, and to tie it in with the language of Bill C-288, to use formulary language that we know about and that has a precedent--would help with some of your concerns and criticisms.

[Prof. Peter Hogg]

Thank you, Mr. Godfrey.

As a matter of constitutional law, the analogy with wartime is probably not effective. In the First World War and the Second World War, the War Measures Act authorized the entire government of the nation to come under regulation, including areas that in peacetime had been completely under provincial authority. This was done because of the emergency power of peace, order, and good government. The emergency power of peace, order, and good government will not permit temporary legislation as sweeping as that which is contained in this bill.

There might be room for disagreement on this, but I don't think a court would say that we are facing an emergency comparable with the First or Second World War and that comparably sweeping emergency legislation is warranted. I don't think this works as a matter of constitutional law.

I agree entirely with Mr. Castrilli and Mr. Elgie that if the bill were made more specific, there would be a better chance of its holding up. I think it's easier to do a good deal under the criminal law power, because that's what CEPA is enacted under. Much of what can be done to reduce greenhouse gas emissions can undoubtedly be done through amendments to CEPA, and we have a ruling that CEPA is a valid criminal law. So if the bill were more narrowly drafted—especially if, as Mr. Castrilli mentioned, it was reframed as an amendment to CEPA—I would think we would have a valid criminal law. But of course you can't do everything under the criminal law power.

I don't agree with Mr. Elgie that it's easy to fix up under the peace, order, and good government power. Crown-Zellerbach is the case that is the precedent for applying peace, order, and good government. In this case, the federal government passed a law, the ocean dumping act, that prohibited dumping at sea. The court said this could be upheld under the “national concern” branch of peace, order, and good government. The application of the decision was limited to dumping from ships in marine waters.

On this question, the court divided four to three. The majority upheld it, but Justice La Forest, speaking for the minority, said the topic of marine pollution was not sufficiently distinct—it could lead to federal regulation of industrial and municipal activity, resource development, construction, and recreation, because all these matters contribute to marine pollution.

It seems to me that if we limited this to defined greenhouse gases, we would still have to face the potential for regulation of energy production, transportation, buildings, homes, appliances, agriculture, and forestry. All of these things could be regulated by the Governor in Council, under federal legislation, because all of these things would contribute to the reduction of greenhouse gases. I don't think peace, order, and good government will sustain anything as broad as that.

[The Chair, Conservative, Bob Mills]

Well, Stewart, at least you had your proof, both sides of the issue.

Mr. Bigras and then Mr. Lussier, please.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chairman. I will be sharing my time with Mr. Lussier.

First of all, in listening to you this afternoon, I'm under the impression that you are sending us the message that the bill needs to be rewritten in order for it to make sense. I'll invite the clerk to note down what our witnesses have said today and to verify the admissibility of certain amendments that will be submitted to us over the next few weeks, to ensure that the amendments proposed by the witnesses are feasible within Bill C-377. According to the comments and suggestions made by our witnesses, I am under the impression that in many cases, these amendments could be ruled inadmissible.

Mr. Hogg, I was struck by your intervention, particularly by page 5 of your testimony where you stated:

The vagueness and breath of Bill C-377 has the potential to reach deeply into many fields of provincial authority. Without more careful definition of the kinds of regulations that are contemplated, the bill is outside the national concern [...]

And yet, the sponsor of the bill no doubt took this into account by suggesting, in clause 10, that in order to fulfill commitments provided for in clause 5, there must be, and I quote: “(iv) cooperation or agreements with provinces, territories or other governments;”.

Am I to understand from your presentation that this aspect of clause 10 doesn't give anymore protection either and that there are numerous aspects that could lead to encroachment regarding sectors of provincial jurisdiction? Would it be possible—I know that this is the case with the Canadian Environmental Protection Act—to sign equivalency agreements with the provinces in certain sectors? Would it be possible to envision equivalency arrangements, not regulatory arrangements but agreements based on results, such as those that we integrated in Bill C-288?

[Prof. Peter Hogg]

Excuse me, sir, for responding in English.

If the regulation-making power were limited to the kinds of things suggested in the various subheadings in subclause 10(1), in the ways that have been suggested by Mr. Elgie, there would be a much stronger case for upholding the legislation. But as clause 10 stands at the moment, it is simply a list of possible things the Government of Canada might decide to do to ensure that it will meet its clause 5 target. It doesn't impose any limitations. In fact, if the Government of Canada decided to do completely different things to achieve the targets, clause 10 would not be violated. It's really a reporting section rather than a section that limits or guides the actual regulation-making power of the Governor in Council.

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

I have a question for Mr. Elgie. In the Quebec Hydro ruling, the judges were split five to four. In the arguments outlined by the four dissenting judges, did you find any reasons that could have had an impact on your presentation today?

[Prof. Stewart Elgie]

The answer is yes. I will continue in English.

In two areas, Hydro-Québec's dissent dealt with both the criminal law power and the POGG power we talked about today. One of the things the dissenting judges made clear--because they didn't agree with upholding CEPA under the criminal power--is that the problem needed to be defined in more narrow terms. Their problem with CEPA was that it defined the term “toxic substance” so broadly that it could include almost any substance you could think of. That was their biggest problem with the act. By contrast, if you define the term “greenhouse gases” in here, you would be limiting it to six substances. Their point was that the way “toxic” was defined in CEPA, it could include thousands and thousands of substances.

So their biggest concern about criminal law power could be dealt with by simply limiting the scope of substances to be dealt with here.

In terms of peace, order, and good government, obviously this isn't the time or place to have a full constitutional debate. The minority said that CEPA was too broad to be upheld under the peace, order, and good government power, but then they gave a road map to the kinds of things that could be redrafted that would make them think it was within the peace, order, and good government power. They said if it were limited, for example, on the basis of the severity of the harmful effect a substance would have.... Well, greenhouse gases are known to have a pretty severe harmful effect. Then they said, “Or if it were limited on the basis of their extra-provincial impacts....” Again, greenhouse gases are the poster child of a substance that has extra-provincial impacts. Everything we put up into the atmosphere has an equal effect around the whole planet.

So without wanting to wade into all the minutiae of it, under the peace, order, and good government power, were you to clarify that greenhouse gases have an international and interprovincial impact, that would certainly help the argument.

[The Chair, Conservative, Bob Mills]

Mr. Lussier, you have another minute.