Environment Committee on Nov. 22nd, 2010

[Kathleen Roussel]

I think you won't be surprised that as a head of legal services at Environment Canada, I've given a lot of advice on the Kyoto Protocol Implementation Act, and I cannot answer that question without breaching privilege.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right.

I'm going to say that it's my opinion that it very well would, and probably that's exactly what clause 16 is directed toward, and that as a consequence it would trigger all of the remedies in clauses 19 and 20, ordering in effect a judicialization of environmental policy.

But I'm probably out of time at this point.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Woodworth. I'm sure that you will not be submitting legal fees to the rest of us as members for your advice.

Mr. Kennedy, you can kick us off on the five-minute round.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

I will, and I will try not to interrogate myself.

I just want to assure the witnesses that we have very good Hansard folks. They will not misattribute comments that were made most recently.

I want to go to the actual differences between this proposed act and what you now have as a framework. You have a legal framework that emanates from a variety of different legislative sources, and I'm wondering if you could focus for us.... I know in your presentation you talked very specifically about the broadest implication, which is this overarching reference to the bill of rights.

Actually, I wonder if you could help educate us a bit. The bill of rights has been around for some time. How has that been implemented over the years? Obviously the charter has taken precedence in many important areas, but the presentation you made to us—I'm going to ask this question first—is about the implications of it having this overarching charter reference that it must comply with. How would that be enforced? What do we know from the past use of charter-based rights how legally it would be binding on the government?

[Kathleen Roussel]

I will let Mr. Nielsen answer.

[Eric Nielsen, Counsel, Public Law Policy Section, Department of Justice]

Judging by the past, you can look at two elements in the Canadian Bill of Rights. In section 1, Parliament has declared a number of rights that in its judgment had existed and shall continue to exist, and that is where the new right to a healthy and ecologically balanced environment would go.

Then those rights are put to work through section 2 of the Canadian Bill of Rights. Section 2 directs that the laws of Canada shall be interpreted and applied so as not to infringe the rights in section 1. And if they cannot be sensibly interpreted and applied so as not to infringe the rights in section 1, then a court can find the relevant law inoperative, which means it will not be applied in a particular case.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

So basically it's on application of someone to a court to say that this hasn't been applied? The court would have to be brought into the picture, correct?

[Eric Nielsen]

It can arise in different ways. If you are in a proceeding in which a federal law applies—it could be in the context of criminal law, it could be a judicial review, perhaps, it could be a civil action against the federal crown in a provincial superior court, and so on--then as long as a federal law applies, the court could work with the Canadian Bill of Rights—

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

So it's a justiciable right. It can be used in argument and applied. Do we have any other rights that exist in the bill of rights that aren't in the charter? Can we get a few examples of those?

[Eric Nielsen]

Yes, the main one is in paragraph 1(a). It's the right to the enjoyment of property and the right not to be deprived thereof, except by due process of law.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

And is it often relied on? Do those exceptional elements get used a lot in applications to the courts?

[Eric Nielsen]

It has in the past. The most recent case I'm aware of was the Authorson case, 2003, Supreme Court of Canada. A claim was made that a certain law deprived the claimants of their property without due process, and they lost at the Supreme Court of Canada.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

I won't ask you for the details of that, but the argument wasn't successful, is what you're saying.

There have been deputations here that suggest that certain charter rights might overrule here—right to liberty and.... I won't try to quote which sections. But has any assessment been done as to how effective this particular couching of rights under the bill of rights could be?

I'm asking here, not from a policy standpoint but from a purely legal standpoint, your knowledge of these other workings, these other applications of the bill of rights, the chances of some of the things being proposed here being overruled by the charter. Or is that speculative to ask you?

[Eric Nielsen]

I'm not sure I'm understanding your concern. Overruled by the charter in the sense that...?

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

An existing provision in the charter would be used to say that this interferes with a right that is, I guess, more fundamental.

[Eric Nielsen]

Of course, the right to the healthy and ecologically balanced environment would be added only to the Canadian Bill of Rights and not to the charter. The charter is part of the supreme law of Canada. It always controls all other subordinate laws. That would include the Canadian Bill of Rights.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Right. I should be more specific; there was one particular deputant who suggested a portion of the charter that they thought would overrule or have some negative effect on the application of this.

Maybe that's just too esoteric. I'll pass on that question.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Kennedy. Your time has expired.

Mr. Blaney, please.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chairman. I have no questions for my colleague, Mr. Woodworth.

I don't know if it's because the Harry Potter film has just been released, but I increasingly have the feeling that someone is playing sorcerer's apprentice with this bill.

I would like to thank the witnesses for being here.

I have no legal training, but as you were making your comments, a document was handed to us from the Conseil patronal de l'environnement du Québec in which there are a number of ‘shock’ statements that I'd like to share with you. One deals with clause 22 and reads as follows:

Moreover, the CPEQ notes that such an erosion of fundamental legal principles would be likely to shake the foundations of our judicial system and give rise to precedents that might be repeated in other areas.

That is mind-boggling, as they say. You said it would be up to a court of law to make such a determination.

A lot of things would be left to the courts.

I know that you have limited speaking time this afternoon. I have no desire to take you somewhere where you don't want to go, but I can tell you that, personally, this bill does take me somewhere where I don't want to go—namely, into areas or situations that will ultimately create new law. What I discovered this afternoon is that this could happen, not only in the environmental domain, but also in other areas of jurisdiction.

Have you compared the bill that is before you, and which we are currently reviewing, with institutional legislation? Earlier the Environmental Commissioner of Ontario told us that there are civil remedies available, but that they are in no way comparable to what is proposed in this bill.

I'd like to come back to the Conseil patronal de l'environnement du Québec and give a few examples from Quebec. In the Quebec Charter of Rights and Freedoms, section 46.1 enshrines every person's right to live in a healthful environment in which biodiversity is preserved. That looks very similar to the substantive principle that appears in the bill that is before us, which is the right to live in a healthy environment, except that the right is framed using the following words: “to the extent and according to the standards provided by law”. The same applies to the Act to affirm the collective nature of water resources and provide for increased water resource protection, which enshrines the right of every natural person to have access to water that is safe for drinking, cooking and personal hygiene, under the conditions and within the limits defined by the law.

Finally, what we're saying is that this bill does not contain any “buts”; there are no limitations. The federal government, as custodian of the environment, would have an obligation to protect this undefined right. The lack of limitations creates a climate of constant uncertainty where authorizations granted to companies, as well as adherence to the laws and regulations in effect, become almost secondary. Environmental laws become secondary in the environmental domain.

Mr. Chairman, do you think I can ask our legal counsel to comment on this, within their area of jurisdiction?

[The Chair, Conservative, James Bezan]

Only what you feel comfortable commenting on....

[Kathleen Roussel]

We can certainly give you a comparative overview between Ontario and Quebec and what this bill is proposing.

I will let Mr. Melaschenko answer that question.

[Joseph Melaschenko]

I offer my comments to the committee not as an expert on provincial law. I've had occasion to read the provincial statutes that we've been discussing, including statutes from the Yukon and the Northwest Territories, so I very much offer my comments in that context. I hope they answer your question to some degree.

What I've noticed is that the statutes from these four jurisdictions do, in some way, recognize environmental rights. However, all the rights being recognized don't necessarily mean the same thing.

Why would I say that, not being an expert in provincial law? Well, for one, on their face, they're worded differently. Some have limitations, which we've alluded to, in particular in Quebec.

Also, the legislation of the Northwest Territories, the Yukon, and Ontario does not provide for a specific right of action against the government for violating a right to a healthy and ecologically balanced environment.

I've also compared the civil causes of action, which I can speak to you about, if you'd like, although I don't know if at this point if....

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Are there any parameters or limitations in the bill that is before us, compared to provincial statutes?

[Joseph Melaschenko]

Again, I think we're getting into too much of a value judgment to ask me to say whether this bill is limitless or not.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Okay. Then I'll go with another question.

Are you able to talk about natural law? Some say this bill does not respect the principles of natural justice. Can you explain what they are?