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.