Environment Committee on Feb. 27th, 2008

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Laforest said:

What Parliament is doing...is making provision for carefully tailoring the prohibited action to specified substances used or dealt with in specific circumstances. This type of tailoring is obviously necessary in defining the scope of a criminal prohibition, and is, of course, within Parliament’s power.

This passage makes it clear that, in a complex area like the environment, there can be some administrative discretion in the creation of criminal offences, but the role of the discretion has to be “carefully tailored” by Parliament, meaning that has to be defined and limited by the act.

He goes on to say:

Based on this ruling, it is my opinion that the provisions of Bill C-377 are not carefully tailored in a fashion that could be upheld as a criminal law.

This is where we're getting to the unconstitutionality of it.

It is true that the Bill, by s. 12, provides that the contravention of a regulation is an offence punishable by fine or imprisonment. But the regulation-making power is so broad and vague that any prohibition in the regulations is left by the Act to be designed by the executive within the ill-defined limits set by s. 7 (described earlier in this opinion). The range of conduct that contributes directly or indirectly to the emission of greenhouse gases is vast. Under Bill C-377, it is all subject to regulation, depending entirely on the discretion of the federal cabinet. From the Act it is impossible to discern what conduct the federal cabinet will actually decide to prohibit. Indeed, even the amount of any penalty is left to the federal cabinet: by 12, any fine or imprisonment for breach of the regulations is “as prescribed by the regulations”.

Then he says:

In my opinion, Bill C-377 does not contain a “carefully tailored” prohibition or penalty of a kind that would qualify as an exercise of Parliament’s criminal law power. The Bill would not be upheld by the Supreme Court as a criminal law.

Then under the section of peace, order, and good government he says:

The Constitution Act, 1867, by the opening words of s. 91, confers on the Parliament of Canada the power to make laws for the “peace, order, and good government of Canada” (pogg). The branch of that power that can authorize environmental legislation is the “national concern” branch, under which Parliament has authority to make laws on topics of national concern.

He then says, as Mr. McGuinty will remember:

In R. v. Crown Zellerbach (1988), the Supreme Court of Canada upheld the federal Ocean Dumping Control Act under the national concern branch of pogg. The law in issue prohibited ships from dumping any substance into the sea without a permit. The Court upheld the law, taking the view that marine pollution was a matter of national concern that was distinct from matters of provincial jurisdiction and beyond the capacity of the provinces to control. But, as in Québec Hydro, the Court was narrowly split, in this case four-three. The split was over the requirement of the national concern branch that any matter of national concern had to have “a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern”. For Le Dain J. speaking for the majority, the topic of marine pollution did have sufficiently ascertainable limits to meet this requirement of distinctness. For La Forest J. speaking for the dissenting minority, the topic of marine pollution was not sufficiently distinct, because it could lead to federal regulation of industrial and municipal activity, resource development, construction, recreation and other matters that contribute to marine pollution but are within provincial jurisdiction.

In Crown Zellerbach, the majority upheld the law, but the issue of difficulty was the requirement of distinctness. Although the law merely prohibited dumping at sea, the split of the Court made clear how close the decision was. In the case of Bill C-377, no attempt has been made to place limits on what Parliament can do to reduce greenhouse gases; the Bill appears to authorize any regulation that would have the effect, direct or indirect, of reducing greenhouse gas emissions. On the face of it, the Bill represents an assertion of federal authority (coupled with a massive delegation to the executive) over a huge range of matters that are now within provincial jurisdiction. While there can be no doubt that the reduction of greenhouse gases is a matter of national concern, legislation has to be drafted that focuses on a distinct matter, such as industrial air emissions, to have any prospect of being upheld by the Court under the national concern branch of pogg.

Of course, “pogg” is peace, order, and good government.

In my opinion, Bill C-377, while clearly directed to a matter of national concern, is too broad and sweeping to satisfy the requirement of distinctness that the Court has imposed as a limitation on the national concern branch of pogg. The Bill would not be upheld by the Court under that head of federal power.

He then gives his conclusion with respect to his perception of the unconstitutionality of Bill C-377:

The constitutional problem with Bill C-377 is that it leaves the reduction of greenhouse gas emissions solely to a 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 [to achieve the targets for reduction of emissions]”. 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 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 grave political concern quite apart from constitutional issues. However, the constitutional issues are enough by themselves to defeat the legislation. Bill C-377 is outside Parliament’s power over criminal law, because that head of power, in addition to a criminal purpose, requires a prohibition and a penalty. If the prohibition and penalty are 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 of any kind. Bill C-377 is outside Parliament’s power over criminal law, because that head of power, in addition to a criminal purpose, requires a prohibition and a penalty. If the prohibition and penalty are 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 of any kind. 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 only if the matter is sufficiently distinct to distinguish it from matters of provincial concern

So I would think that my Quebec colleagues, Mr. Lussier and Mr. Bigras, would be particularly concerned about this, and particularly that last part, where he judges it to be....

Pardon?

[David McGuinty, Liberal, Ottawa South, ON]

[Inaudible--Editor]

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Exactly.

It is an issue in terms of the provinces, for sure. He says that the matter has to be “sufficiently distinct to distinguish it from matters of provincial concern”. In his view, it does not.

So, “the vagueness and breadth of Bill C-377 has the potential to reach deeply into many fields of provincial authority”. That's a concern for Saskatchewan. It's a concern for every province. It's obviously very much a concern, I would think, for Quebec, as well. It reaches into no end of areas of provincial authority.

“Without more careful definition of the kinds of regulations that are contemplated,” he says, “the bill is outside the national concern branch of peace, order, and good government.” His conclusion is that “the Parliament of Canada lacks the power”, clearly lacks the power “to enact Bill C-377, and if Parliament were to enact the bill it would be struck down by the Supreme Court of Canada”.

That was the respectful submission of Peter W. Hogg, a distinguished legal authority in our country.

I'll come back to that a little bit later, in terms of the constitutionality, because I think it's a big one. It's probably reason enough to do some further study of this and to get this thing right. But in its present form, even with many amendments, it needs to be started all over from scratch. I think that would be the better approach.

As a member of Parliament for just about eleven years now from the province of Saskatchewan, I saw the impact that this particular bill would have in a disproportionate way on my home province. It's a province that for the first time is coming out of the have-not status, coming to a point where we're doing well, and we will do so in more significant ways.

Compared even to places like Alberta, we have a greater breadth, if you will. We have uranium, we have diamonds, we have the potash there, and we've got fairly diversified. We could have a much more diversified economy than some of the other provinces. So that stands us in pretty good stead.

But I'm speaking of the impact of Mr. Layton's bill, and as I said once before in a meeting here, I'm not exactly sure what Mr. Layton has against that province, the birthplace of the NDP or CCF. The only thing I can figure is that it's because they've turned the NDP out on its heels just recently. As of last fall, we have a Saskatchewan Party government in place.

Typically, in our province of Saskatchewan, it's kind of ironic. Whenever things are looking up, looking a little better, we don't figure we can trust the NDP, the socialists, to carry it from there, so we turf them out. If we get down on our luck and things go unfortunate, then sometimes we'll allow them back for a short period of time.

That's the typical and historic pattern in the province of Saskatchewan. If things are looking up and looking good, we don't trust the NDP to steward that economy and steward things for the days ahead. We've just had to evict them, I guess, for the present, and they've been relinquished by a fairly significant majority.

Rather than the bill before us, we should go back to C-377, the common-sense approach that our government was taking, which is far superior and supercedes all of the attempt of the bill here by the leader of the NDP and advocated by Mr. Cullen here in this committee on his behalf. I think anybody who is fair and objective would want to admit that this government is serious about tackling climate change and about doing it in practical ways, in terms of clean water, clean land, clean air.

It's been in our budgets, it's gained significantly in the budget 2008. For my province, there is a big impact in terms of what we can do now by way of carbon sequestration.

The government is serious about tackling climate change and protecting our environment, cleaning up the air Canadians breathe today and down the road, as well as looking to the future, for my children, for my soon to be six grandchildren. We need that kind of thing, and we want to do that in Saskatchewan.

This Bill C-377 will simply not do that. In fact, as opposed to this bill before us, back in October 2006 we were already moving to regulate greenhouse gases that caused climate change, as well as air pollution. We've proceeded on that with the necessary implementation.

Some of the effects of climate change in Saskatchewan are pretty serious, pretty severe. That's why we need to move on it. I think all of us around this table would be agreed on that.

We're not immune as a province to the effects of climate change. Environmental impacts of climate change on Saskatchewan include challenges for agriculture. That's a big thing in our province. It's not as much a percentage of the gross domestic product for our province, but it's still significant. It's still a huge percentage. It will impact pretty significantly on agriculture.

My province of Saskatchewan is a fairly cold place sometimes, but too warm a climate would create droughts. We've faced some of that in the past and could in the future. It would also produce the kinds of conditions for weeds and insects, which would reduce crop yields, and cause some summer heat stress in livestock as well.

So that's a concern for those who farm, for my constituents, and for me. We've just bought a little farm there outside of Saskatoon, so we'll be directly involved in experiencing that, and hopefully not too many of the serious adverse effects of that.

The severe weather is something we need to take seriously in our province. A warming—

[Mark Warawa, Conservative, Langley, BC]

On a point of order, Mr. Chair, I'm having difficulty hearing Mr. Vellacott. He's right beside me. Could I ask you to have the noise in the room quieted down just a little bit, please, so we can hear?

[The Chair, Conservative, Bob Mills]

I would ask people to try to keep their conversations as low as possible, please, because we don't want to miss Mr. Vellacott's riveting information.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Thank you, Mr. Chair. I have to say, I don't mind a little bit of the interaction back and forth.

[The Chair, Conservative, Bob Mills]

That's fine. Just keep it between you and me, and we'll keep it going.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

It was getting a bit distracting, but I'll do my best to carry on here in the midst of that.

We need to take pretty seriously the air emissions in our province and our country and the effects of climate change. If we don't get ahead of that and deal with it in practical ways, it could be pretty serious for our province.

A warming climate is expected to increase both the number and the severity of thunder storms, heat waves, and drought that would cause damage to our crops and endanger life and property as well.

Going back to our plan, our regulatory framework, Bill C-288 I think would have been a much superior approach to be taking. We should have had some pretty good cooperation with that, instead of this Bill C-377, which wasn't properly costed and is constitutionally suspect. Others around the table are aware of that as well.

In our approach--as opposed to this Bill C-377, again--there were mandatory targets, real results. We don't see that here. And Mr. Hogg has pointed that out, the vagueness and the ambiguity of it.

In our approach, which would have been the better one to go with, reducing emissions of greenhouse gases, air pollution.... It's not a matter of choice for industry. You can't leave it up to them to decide if they want in or not. It is compulsory. It has to be. Our plan, our regulatory framework, would set that kind of compulsion, the mandatory targets for reduction of industrial greenhouse gases that cause climate change. Those targets were stringent and were going to be tightened every single year, so as a result we would start to see those absolute reductions. Again, with Bill C-377 we don't have that, we don't have the preciseness. It's vague, it's ambiguous, and it gives far too much power and too much reach in respect to its constitutional intrusion, as well, whereas these industrial emission targets, the ones from our plan, combined with other actions, practical actions announced to date to fight climate change, would put us on track for that 20% absolute reduction of Canada's greenhouse gases compared to 2006 levels by the year 2020.

I appeal to Mr. Cullen to look in terms of the seriousness and the practicality and pragmatism of those kinds of regulations. That would reduce the emissions of pollutants that cause smog and acid rain by up to 55% as soon as 2012--compared to 2006 levels. As well, I think when you're looking at a plan—and that's not at all anywhere here in Bill C-377—you need to have flexible tools for compliance. You don't get there overnight, but you need to make it mandatory, compulsory, and allow the kinds of creativity--I guess I would say--and the flexibility in terms of the tools of compliance to get the job done.

There's no doubt that in any of these measures, and in terms of our regulatory measures, as well, there would be a period of adjustment for industry, because this is pretty hard stuff, it's tough stuff, but it's required. You need then an achievable plan that does not sacrifice jobs in Saskatchewan.

The concern with this particular Bill C-377 is that in fact we will have significant economic hurt and impact. Counter-intuitively, if you will, we'll hurt the economy such that we won't be able to do the good things in terms of the environment, the clean up, and the good clean water, land, and air that we need.

By way of the regulatory regime that we were proposing, giving industry the flexible tools to meet their targets, companies being able to choose the most cost-effective way to comply--which includes making real reductions in their own facilities, taking advantage of emissions trading, and investing in new technologies--all of those things are within the basket of what they can do to get the job done and to meet their targets.

Companies will also be able to invest in a technology fund that will deliver greenhouse gas reductions, now and in the future. I think technology is pretty crucial to ensure that we make the progress against climate change, and the confirmed guiding principle of that fund is that it will not be used as a mechanism for the inter-regional transfer of wealth and resources. That's a big concern to us in our province.

Moreover, the provincial technology fund may be accredited as compliant as long as they meet the federal requirements. That fund will be used to finance further research on carbon capture and storage technologies that show a lot of promise in Saskatchewan.

I was very pleased about the progress we're going to be able to make as a result of the budget announcement yesterday of some $240 million for carbon sequestration. For my province, that was a major, significant step forward, not only for us but for our country. The benefits will accrue to elsewhere across this nation. Some critics might complain about the cost of these measures for Saskatchewan's industry, but they are more forward-looking measures. Some see the glass as half full and some as half empty, but we need to be looking for and recognizing those new opportunities in Saskatchewan. And it's come our way already in terms of the $240 million for carbon sequestration.

In some sectors, it's going to mean that industry will have to seize the opportunity to improve competitiveness by becoming more innovative. For Saskatchewan's oil and gas sector, that's the case. It will mean their developing and adopting cleaner technologies, and so be it. They do it, and the job gets done. The oil and gas industry--or as Mr. Layton likes to refer to it, big oil and big “ass”, I think that's what he calls it—in my province has thrived on competition. The entrepreneurial spirit along our border with Alberta, down in the south of the province in the Estevan and Weyburn area and across through Swift Current, as well, has driven its growth and has responded to challenges by finding those necessary innovative solutions.

In our regulatory regime, as opposed, again, to Bill C-377, Saskatchewan's electricity generating industry will also have to make changes, which we acknowledge, to achieve the required reductions by adopting cleaner technology to improve its competitiveness. And we'll probably be able to market that abroad, as well.

We've already seen those two sectors cooperate on an exciting and innovative project in Weyburn, where the carbon dioxide emissions from an electricity generating station that uses clean-coal technology are injected back into the ground. And as I said, with some $240 million in the budget yesterday, they can explore that and develop that even more. That's one of the largest climate change research projects in the world. It will help us understand how we can use underground storage of greenhouse gases to address climate change for our nation.

Some of the other measures that I think are significant and that, again, are omitted and not referenced in any way in Bill C-377, we're taking action on. Our approach is to reduce the emissions causing air pollution from cars, recreational vehicles, trucks, trains, and marine engines. We are taking action to use products, such as light bulbs, dishwashers, refrigerators, air conditioners, and commercial boilers, that use energy much more efficiently. We want to have efficient energy, because as a result, we'll have less wasted energy and less air pollution. I think we need to, without question, for any and all and for those that suffer allergies and those that have other air-related ailments.

We need to work to improve that, especially, as well, for indoor air. Saskatchewan is a cold enough province that a good many months of the year we spend inside. Consequently, for the air we breathe inside our homes, our places of work, our businesses, the malls, and so on, it's crucial that we also deal with that and have the regulations that will address that issue. In Saskatchewan we spend a lot more time indoors than they do, maybe, even in some other provinces. So actions to improve indoor air quality are very important for us. Again, this bill has nothing specific in respect of that.

I think the federal government needs to be doing that careful collaborative work with the provinces, recognizing the significant actions the provinces and territories are taking. They need to be acknowledged and credited or applauded for all they do to promote clean air and to address climate change. Those efforts and initiatives need to be encouraged.

Again, from the federal point of view, there is nothing referenced to this in Bill C-377; but we need to have that kind of partnership, that working together, with the provinces and territories to avoid duplication of effort and to ensure we get maximum environmental benefits with minimum administrative and cost burdens for the industry.

Mr. Chair, I think the noise level is getting up a little bit. I'm finding it a bit uncomfortable again.

[The Chair, Conservative, Bob Mills]

Again, I'd remind members that we do have a speaker. Could we try to keep the noise down and give Mr. Vellacott the—

[David McGuinty, Liberal, Ottawa South, ON]

Just keep going, Maurice.

[The Chair, Conservative, Bob Mills]

Go ahead, Maurice.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Thank you.

Again, that cooperative approach is far and away the better approach, instead of just mandating things and hitting from the top down provinces like Quebec, or whatever province it has to be. I think the approach our government is attempting to take in respect of the provinces and in respect of their authority is the better approach.

My province is going to benefit in a significant way from clean air, and from the climate change funding announced by Prime Minister Harper.

Under the trust fund initiative, Saskatchewan will receive something like $44 million to support provincial projects. That results in real reductions in greenhouse gas emissions and air pollutants in the province. So money is being spent, as opposed to not knowing exactly what the costs will be and the dollars spent in Mr. Layton's bill, Bill C-377.

Some of the activities planned in our regulatory approach include continuing development of near-zero carbon dioxide emission electrical generation projects, and implementing measures to improve energy efficiency and conservation, including promotion and support for energy reduction by homeowners, businesses, farms, and communities. All of that is very commendable.

I was quite excited to hear the chair relate to me last week the good stuff he's done with solar power just recently, and how, I think, he now puts power back into the grid in Alberta as a result of that. So in his retirement years, I guess he has a little business going there and will do very well. In a significant way he is contributing to cleaning up the environment across the country, but particularly in his own home province.

So I think that developing and utilizing renewable and alternative energy sources, as he's doing, and as I want to do with geothermal--including biofuels, solar energy technologies that some others are doing, and doing effectively as well....

The regulations would continue to encourage us to lead efforts in carbon capture, including sequestration, which we talked about here, and particularly through the international test centre for carbon dioxide capture.

So the clean air and the climate change funding for Saskatchewan is part of a national $1.5 billion initiative to protect Canadians from the consequences of climate change and air pollution. Those initiatives will ensure that we protect our environment, that we clean up our air, and that we make real progress toward reducing greenhouse gases.

I believe in this different approach, as opposed to the one in Mr. Layton's Bill C-377, which is going to punish our province very significantly and very adversely affect us. If we take the approach our Conservative government is proposing, the regulations and regulatory approach we have indicated, we will implement this plan in a way that ensures our economy can continue to grow and prosper. In fact, these measures will bring economic benefits to some sectors. For example, Saskatchewan's forestry and agricultural sectors will benefit from the reduced impact of acid rain and smog. New industries, such as those that produce energy from renewable resources like the wind and sun, will also benefit and create jobs. So there is also something in terms of the economic opportunity there.

So I think this means, not only for Saskatchewan residents but beyond them as well, that tough regulations will have real and tangible health and environmental benefits for everyone, as well as positive economic benefits.

In Saskatchewan, my home province, where I advocate from and advocate for, these benefits are invaluable. They include cleaner communities and natural spaces; healthier children; fewer emergency room visits and fewer hospital admissions and premature deaths; and also, obviously, more sustainable natural resources.

So for the first time since Canada signed the Kyoto Protocol nearly a decade ago, Canada is going to be making meaningful contributions to the global effort to control greenhouse gas emissions. But strong actions like these, as opposed to the vagueness and the ambiguity of Bill C-377, come at a cost, and those costs, while manageable, will be borne, at least in part, by individual Canadians and their families.

We must all be prepared to do our part to bear that responsibility to get the job done for the generations ahead, but we have to make a start now. So we have that important role to play, and we can take significant measurable action in our own backyard, in my province of Saskatchewan. I think the citizenry is prepared to do that.

Climate change is a global issue. It requires federal leadership. However, the burden must be shared by everyone, including provinces, territories, industry, and individual Canadians from coast to coast.

I want to refer again, in terms of the contrast that we have in Bill C-377, to some of the very practical things we're doing. I want to refer as well to some of the Hansard records that somebody just took away from me bit ago, some of the good stuff on the record there in terms of the questions, in a few places, to Mr. Hogg, questions raised by Mr. Bigras and Mr. Godfrey, who is not here today, who had raised some issues. Maybe, in fact, I'll turn back to that in a moment as well.

Again, when you look at the suspect constitutionality of the bill before us and then you move on to something substantive, solid, and practical, as recent as yesterday in terms of some of the effect that we have here.... I just refer to a couple of places here.

Mr. Hogg was pretty plain. I think he was pretty clear in terms of the comments he made. Mr. Bigras had some good questions.

[David McGuinty, Liberal, Ottawa South, ON]

You said Mr. Hogg.

[The Chair, Conservative, Bob Mills]

Mr. McGuinty, can you advise me of corrections you'd like made, please?

[David McGuinty, Liberal, Ottawa South, ON]

Noted.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Professor Hogg and Mr. Bigras are the two different individuals I'm making reference to here.

But Mr. Hogg, or Professor Hogg, as Mr. McGuinty reminds me to respectfully refer to him as, who is the scholar in residence at Blake, Cassels and Graydon LLP, said specifically in his Hansard record—and he doesn't mince words:

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

This is out of the Hansard record on February 11.

He said:

[It] 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.

I underline this, “enough to defeat the legislation”. That's pretty pointed.

He continued:

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.

He reference the Hydro-Québec case, which I referred to before, and it was in his printed submission, saying,

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

Do you understand that, Mr. Bigras?

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.

Then there are some interesting remarks by Professor Stewart Elgie, of the faculty of law at the University of Ottawa, the associate director of the Institute of the Environment, as he testifies as an individual. You would probably know him on a personal basis. He said some things that actually parallel, back up, or corroborate, stated in slightly different terms and ways, what Mr. Hogg had to say.

Then Mr. Godfrey had some interesting questions. It would be good if he were able to hear this again today. But he raises some intelligent questions here, and he addresses Professor Hogg on the issue of “POGG”—peace, order, and good government—if I may put it that way. He says:

First of all, I'd be interested in your response--if I have treated your argument unfairly about the urgency of the matter.

Then he would like to know about 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” that would help with some of Mr. Godfrey's concerns and criticisms.

So Professor Peter Hogg says:

As a matter of constitutional law, the analogy with wartime is probably not affected. 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. That was done because of the emergency power of peace, order, and good government.

I think Mr. Trudeau actually enacted that as well, did he not, the War Measures Act in the province of Quebec. So those are sweeping kinds of powers.

[The Chair, Conservative, Bob Mills]

Perhaps you could keep on the climate change issue. I don't find a lot of relevance in the War Measures Act in this one.

[Jeff Watson, Conservative, Essex, ON]

You just lost him.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Chair, in fairness, it was in reference to the peace, order, and good government and how that War Measures Act has broad and sweeping kinds of powers. You don't really want to go there very often--pretty infrequently. So on this particular bill that we have before us and the kind of reach of a bill of this sort, you could bring it under that kind of a comparison. That's the point here. So I'm being on topic here by what Professor Hogg says:

The emergency of power of peace, order, and good government will not permit temporary legislation as sweeping as that which is contained in this bill.

And that's the point. So this is not comparable to the War Measures Act. Peace, order, and good government is of a different order.

He says:

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.

He says this very pointedly again. He continues:

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--

And I know Mr. Cullen is taking careful notes here on this part.

I think we would have a valid criminal law. But of course you can't do everything under the criminal law power.

He doesn't agree with his colleague here, Mr. Elgie, “that it's easy to fix it up under the peace, order, and good government power.” He references the Crown-Zellerbach case and says:

...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.

The court was divided. Mr. McGuinty knows that he rather contradicted me in terms of the split there. He further says:

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.

He goes on to say:

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.

Mr. Bigras noted that Professor Hogg was sending us the message that the bill needed to be rewritten in order for it to make sense. “ I am under the impression”, said Mr. Bigras, “that in many cases these amendments could be ruled inadmissible.” He was referring to some that had to be checked out here. Then there was his question in respect to signing up equivalency agreements with provinces in certain sectors: “Would it would be possible to envision [such] arrangements, not regulatory arrangements but agreements based on results, such as those...integrated in Bill C-288?”

Professor Peter Hogg says:

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...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.

So there are very broad, sweeping powers there.

He goes on later on in his testimony, and again he talks about case law in the country, federal law binding provinces, and so on. He concludes at the end that if the bill were constitutional....and he says “I'm saying that in its present form it is not”. And he's pretty precise about that. Then he actually makes a point, “yes, I believe it could have closed down Ontario's”--Mr. McGuinty would be interested in this one--“coal-fired electricity generating stations.” I would assume he was referring to Mr. McGuinty's election promises probably, but that was a reference just at the very end of his brief.

Again when you look at Bill C-377, it's not properly costed; it's not constitutional; there are issues with it. The very fact that we have to have the NDP.... Jack probably was kind of busy when he scribbled or scrabbled this thing together, because it has to be amended significantly by his own party. This is rather uncommon, rather irregular, unheard of, you might say, to be amending significantly your own bill. So there were obviously issues. He's a busy man, and he's across the country, and in Toronto and other places like that, but not too much in my province. He would probably not want to hurt it quite as badly if he understood the impact on the province of Saskatchewan.

Just as recently as the other day again, the government has been confirming and carrying on that steady progress forward in terms of a cleaner, healthier environment, and very pointedly in terms of what will be done there. The government has a very comprehensive ecoACTION plan, making progress on preserving and enhancing the environment, improving air and water quality, reducing greenhouse gas emissions, and addressing the health effects of environmental contaminants. A key element of that plan, as I referred to before, is the regulatory framework for industrial air emissions, which will impose binding national regulations on greenhouse gas emissions and air pollutants across all major industrial sectors. The ecoACTION plan also includes a mandatory fuel efficiency standard--which I think is long overdue to happen--for new cars and for light trucks for the 2011 model year, as well as standards and regulations for other forms of transportation; renewable fuels; and the energy efficiency of consumer and commercial projects.

So those are the kinds of practical things that we've been kind of--

[The Chair, Conservative, Bob Mills]

Mr. Vellacott, if you could, try not to repeat yourself. Stay on the topic as much as you can.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Okay, I'm moving into some new—

[The Chair, Conservative, Bob Mills]

Attempt to come into some new material.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

You bet. Absolutely. For sure. That's crucial, Mr. Chair, and I endeavour to do that. I've got some pretty crucial key things, new insights for all of us here, in the remaining minutes that we have.

Budget 2008—again, we're contrasting this, the practical, pragmatic kind of approach that we're taking as a Conservative government, with Bill C-377, which Mr. Layton got together quickly and which needs some significant amendment.

The measured, thought-through kind of plan, the progress that can be made with new measures to strengthen and to ensure effective implementation of Canada's eco-action plan, provides funding actually to implementing regulations that will lead to those significant reductions in greenhouse gas emissions and improvements in air quality, and proposes additional incentives that will advance progress in cleaner energy generation and use.

It also improves Canada's capacity to enforce—

[Larry Bagnell, Liberal, Yukon, YT]

Point of order. In spite of the chair's warnings, this is the third time the member has gone over the same material. I would ask the chair to rule that it's repetitive and that we move on to the next speaker.

[The Chair, Conservative, Bob Mills]

Mr. Vellacott, if you can, please get into new material and not repeat yourself. It's bothering some of the members. I would ask you to just carry on, but carry on into new material, please.