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--