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.