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.