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--