Evidence of meeting #19 for Environment and Sustainable Development in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
3:40 p.m.
Conservative
The Chair Conservative Bob Mills
I call the meeting to order.
(On clause 10—Minister's statement)
Members, clause 10 has amendment NDP-15 on page 16.
I would ask Mr. Cullen to start us off by explaining his amendment.
3:40 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Thank you, Chair.
Committee members, clause 10 talks about baselines and when the government will have to publish its reductions, targets, and everything going forward over five years. This amendment establishes an addition to clause 10 to allow for greater clarity to confirm within the bill and to the government what baseline must be used, so there's a consistent reference point going forward.
It would seem that if governments in the future need to be more accountable for their climate change targets and performance, allowing the baseline to be absolutely or totally clear will give both the Canadian public and civil servants something to benchmark.
I will read the particular amendment, so that everyone is on the same page. It proposes adding a new paragraph 10(1)(c):
(c) the level of Canadian greenhouse gas emissions in each of the following ten years to be used as a baseline to quantify the reductions referred to in paragraph (b).
So what this does is say that there will be a moving target—depending, of course, on what the reductions were in the past—and that the baseline is confirmed and public, and there's no dispute about it. We've had too many conversations about baselines in this country and not enough about the action required.
3:40 p.m.
Conservative
The Chair Conservative Bob Mills
So on page 5 of the bill, we're adding a new paragraph 10(1)(c), as amendment NDP-15 proposes. That is on page 16.
3:40 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Thank you, Chair.
Just so we have this in context, I would like to read clause 10:
10. (1) On or before May 31 of each year, the Minister shall prepare a statement setting out
(a) the measures taken by the Government of Canada to ensure that its commitment under section 5 and the targets set out in the target plan are being met, including measures taken in respect of
(i) regulated emission limits and performance standards,
(ii) market-based mechanisms such as emissions trading or offsets,
(iii) spending or fiscal incentives, including a just transition fund for industry, and
(iv) cooperation or agreements with provinces, territories or other governments; and
(b) the Canadian greenhouse gas emission reductions that are reasonably expected to result from each of those measures in each of the next ten years.
Then we have this amendment from Mr. Cullen:
(c) the level of Canadian greenhouse gas emissions in each of the following ten years to be used as a baseline to quantify the reductions referred to in paragraph (b).
We've seen, Chair, eight amendments from the NDP, three from the Bloc, and six from the Liberals. I reckon back to a comment made by the Bloc. When we heard the testimony of, I think, the last group of witnesses, I think it was Mr. Bigras--he can correct me if I'm wrong--who said that maybe this bill should be rewritten.
We heard testimony from Mr. Layton that basically he had help writing the bill, but he was basically setting targets. We heard clearly that there was no policy attached to it, that there was no plan, no costing; it was just wishful thinking to deal with greenhouse gas emissions and climate change.
What we've seen resulting from that is witnesses testifying that there are some very serious constitutional issues with Bill C-377 and that it wouldn't stand up. We've heard that it would not achieve anything. Mr. Layton equated it to the impossible dream. He didn't break into song, but I was ready to join him if he did.
In all seriousness, through all the groups of witnesses we heard a common theme: the necessity of an impact analysis. What I shared at our last meeting was the commissioner's statement about how important it is--that in order to have successful action by government, you need to have conducted an economic, social, environmental, and risk analysis. That's all missing.
What I wish we would have heard from the NDP is an admission of what we heard through all the testimony from every group of witnesses, and from what I believe was the vast majority of the witnesses: that Bill C-377 is not going to accomplish what it says it would like to see, which is a reduction in greenhouse gas emissions.
What I was hoping I would hear from Mr. Cullen is that he would.... With all these amendments--eight of them from the NDP--the bill is basically being rewritten. We don't know the results of the end product that we'll have. It doesn't have any critique other than debate around this table. I think it's important that it be critiqued.
I was hoping the bill would have been withdrawn, rewritten, and presented again to Parliament, because it was so badly written and so faulty. Now the same people who wrote the first draft are writing the second draft of amendments, with the assistance of the Bloc and the Liberals. I don't mean any disrespect, but neither one of those groups has a tremendous history in providing good action on the environment. We heard that also.
The committee has a responsibility to make sure the legislation that leaves here is good and that it's been critiqued. I don't want to repeat myself, but as I've mentioned, we've heard time and time again that it's very important that we have legislation that will take action.
The Government of Canada, with its Turning the Corner plan, has the toughest targets in Canadian history. It calls for 20% in absolute reductions by 2020 and 60% to 70% by 2050. Those are the toughest in Canadian history. What I particularly like about the Turning the Corner plan is that for the health of Canadians it also includes the quality of air that we breathe, both inside and outside. One Canadian death in 12 is directly related to the environment, to environmental causes, so we have a responsibility as parliamentarians to make sure the air we breathe is of good quality; otherwise, it means billions of dollars in health care costs. We also have a responsibility as parliamentarians to make sure we are doing our part globally to attack the issue of a warming climate, and this government is very committed to that.
That's why I take it so passionately that we need to have legislation coming out of this committee and going back to the House that is good. And Chair, because of the testimony we heard, I don't believe Bill C-377 is good.
I had just begun to share some of the concerns that I heard during the testimony yesterday. One of the people who shared at the committee was Mr. Peter Hogg. He was sharing with the committee the importance of the constitutional legitimacy of Bill C-377 and whether it would stand up to a challenge. He shared that he didn't believe it would. He shared that the Constitution Act of 1867 confers on the Parliament of Canada the power to make laws in relation to criminal law. The Supreme Court of Canada has held that a law will be classified as a criminal law if it has a valid criminal purpose backed by a prohibition and a penalty. As far as the valid criminal purpose is concerned, the court has held that the protection of the environment counts as a valid criminal purpose.
The purpose of Bill C-377 therefore qualifies as a valid criminal purpose. As far as the prohibition and a penalty are concerned, the question is whether Bill C-377 contains a prohibition and a penalty as those terms have been understood in the case of law. The courts have traditionally distinguished between criminal law and regulatory law, and the Criminal Code is a classic case of criminal law in that the act itself contains--
3:50 p.m.
Conservative
The Chair Conservative Bob Mills
Mr. Warawa, may I interrupt for a minute? I'm going to try to be a little tighter on relevance. Could you keep to the amendment we're looking at? Could you try to refer to that amendment and talk about this ten-year baseline specifically? If we can try to keep to that, we'll keep everyone's interest.
3:50 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Chair, I appreciate that and I definitely want to keep everyone's interest. I don't want to bore anyone, but what I want to share is very important, and I believe it is relevant.
Clause 10 is talking about targets that are based on presumptions, and if they're based on presumptions, will they stand up against a challenge? I believe the process in meeting targets should be measured against the actual emissions reported in the National Inventory Report, rather than on a projection based on assumptions. We heard Mr. Cullen say that Bill C-377 definitely is basing those targets on assumptions, and very clearly you end up in a problem before the court of law.
3:50 p.m.
Conservative
The Chair Conservative Bob Mills
We have a point of order. Mr. Cullen, do you want to clarify the word “assumptions”?
3:50 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I'm not sure where to.... I think the parliamentary secretary is swimming in his filibuster today.
I'll be very clear with him. This sets out in law, in black and white, a baseline that can be reportable and is based upon the government's own expressions of targets and timelines. It is based upon the government's own calculations of emissions. If he's got a condition or a concern with that, I would accept some amendments, but I think again--
3:50 p.m.
Conservative
3:50 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
He strays into some testimony that I said or didn't say; I said nothing about assumptions. I said very clearly....
He made a point about what my presentation was, but the actual amendment is clear. If the parliamentary secretary would like to make a change to it, we would welcome it. He can make some offers, but he hasn't done that yet. Now he's going into some other place about constitutionality--
3:50 p.m.
Conservative
Mark Warawa Conservative Langley, BC
I may be getting into that, Chair, and thank you for that.
As I said, the process in meeting those targets should be measured against the actual emissions reported in the National Inventory Report, rather than a projection.
3:50 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Chair, the Criminal Code is a classic case of criminal law in which the act itself contains prohibitions of various kinds of conduct. Those include theft, assault, murder, and so on.
This is in the brief of Dr. Peter Hogg to the environment committee:
These prohibitions can be self-applied by citizens who, if they offend, will then be subject to punishment by the criminal courts. For the great bulk of offences, there is no role for an administrative body or official to make regulations or to exercise discretion. A regulatory law, on the other hand, is one that achieves its purposes by more sophisticated means than a simple prohibition and penalty, typically vesting discretionary powers in an administrative body or official and often relying on regulations made by the executive.
I think you can see the relevance that Peter Hogg is making here.
Even if the regulatory scheme is ultimately subject to the sanction of a prohibition and penalty (as is the case with most laws), those are not the leading characteristics of the law: the prohibition and penalty originate in a regulatory scheme. On this basis, federal laws attempting to regulate competition through an administrative body and to regulate the insurance industry through a licensing scheme have been struck down as falling outside the criminal law power.
Again, that is further evidence that clause 10 is not relevant.
Chair, I want to just read his conclusion. It's quite a lengthy document, and in the spirit of cooperation I do not want to bore the committee, but he did give an example. I'll quickly skip through....
Actually, there was a very interesting case that he referred to, R. v. Hydro-Québec. My colleague to my right would remember that case quite well:
...the Supreme Court of Canada upheld the Canadian Environmental Protection Act (a 1988 version of the current federal statute) as criminal law, despite the fact that the Act's prohibition of the emission of “toxic” substances was preceded by an administrative process to determine whether a particular substance should be classified as “toxic”. The Court split five-four on the issue with the dissenting judges saying that “it would be an odd crime whose definition was made entirely dependent on the discretion of the executive”, and holding that “the Act's true nature is regulatory, not criminal”. But the majority held that the intervention of some administrative discretion did not rob the law of its criminal character. At the end of the day, there was a prohibition and a penalty for the release of toxic substances.
Speaking for the majority, Judge La Forest 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.
Chair, again I mention the importance for the process for meeting targets to be measured against the actual emissions reported in the National Inventory Report, rather than what's being proposed in Bill C-377.
Chair, it is very important that we have something that's going to work. What we have now in the Turning the Corner plan is a program that absolutely does work.
We heard from Professor John Stone. This is what he said, and I think it's also relevant to clause 10. He said:
I certainly have been very encouraged by the words I've heard from the present government, Mr. Warawa, of their intentions to tackle this issue.
He is referring to the targets and how they will be determined. He went on to say:
Of course, we need to cost whatever plans they have from whatever party we have and in whichever country we're talking about. That's only good public policy. I will just have to assume that whatever plans are presented to Parliament and to the Government of Canada and to Canadians are properly costed. Yes, I agree with you.
Now, this is again very relevant to clause 10. Again, it's very relevant to the importance of using targets based on the actual reported emissions in the National Inventory Report.
Dr. Stone went on to say that of course you need to cost whatever plans they have. We heard also that Bill C-377 was not costed. Chair, that was the common theme with Bill C-377. It has to be based on science and it has to be based on targets that are real. It has to be based on impact statements. He went on to say we need the cost; whatever party we have needs to cost them. He said he didn't see that in Bill C-377, and that, I'm sure, raised a concern with everybody in this room.
He said:
I don't see that Bill C-377 is necessarily inconsistent with where our present government is going, nor indeed with the aspirational statements I've heard from the other parties.
My sense is that slowly--and I emphasize slowly--we seem to be coming to a consensus amongst parties in Canada that in fact this is an issue we cannot afford not to tackle.
Well, Chair, when we're talking about targets based on a National Inventory Report, this is what I'm talking about. It's our Turning the Corner plan. Our Turning the Corner plan, as I shared, has the toughest targets in Canadian history. They are some of the toughest in the world.
Chair, Canada's new government launched a concrete and realistic agenda to protect the health of Canadians, to improve the environmental quality, and to position Canada as a clean energy superpower. Canada has historically relied on a variety of non-compulsory measures to reduce emissions. That was what the Liberals did. It was voluntary. It didn't work. However, those have not proven sufficient to reduce the--
March 5th, 2008 / 4 p.m.
Liberal
4 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
I have just a quick question through you, Mr. Chair, to the parliamentary secretary. Given that the chief of staff to the minister in the room is just on the verge of leaving, how long does the parliamentary secretary intend to continue punishing the NDP for their support of the Liberal motion at the government operations committee yesterday?
This is what this is all about. It's now been disclosed. It's now a matter of almost public record. Is this going to go on until--
4 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
It's just in terms of timing, Mr. Chair. It's just courtesy. Should we leave--
4 p.m.
Conservative
The Chair Conservative Bob Mills
Yes, you do, Mr. Warawa, and I'm listening to the point of order to try to determine whether it is a legitimate point of order.
4 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
The question is just how long the NDP will continue to get punished for giving their support.
4 p.m.
Conservative
The Chair Conservative Bob Mills
I think there is a concern as to what's happening. All members in the opposition have indicated to me a concern--
4 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
The chief of staff just ran out of the room. It's too bad, because I feel for him. He's on the front page of the newspaper today.