ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 17, 1999

• 1544

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon, ladies and gentlemen. Welcome to this afternoon's meeting. I have a few announcements to make.

[English]

First, John Moffet is recovering and coming along, but not enough to appear here before the committee to deal with the question of whistle-blowing and PIC. It is not likely that he will make it tomorrow, so I am told. Therefore we will see him again when we resume after the week off. This will slow down our progress a little bit. I regret that.

• 1545

The clerk has distributed a clipping from the International Herald Tribune. It is written by Brown and Flavin, who are authors and CEOs with the Worldwatch Institute. If you have a look at it for a moment you will see some of the points they make. We may not fully agree with the points they make, but they certainly can put in small capsules issues that otherwise would take a lot of space and words to describe.

As you can see, the first capsule deals with world energy needs, the second with protein demands and what is happening to the major fish species. The third deals with the question of depletion of species in general. The fourth deals with deterioration of the atmosphere, and it spends some time describing the fossil-fuel-based economies.

If you turn the page, you will see a strong pitch for an economy based on renewable energy. Whether that is realistic or not, only time will tell.

The article goes on to deal with growing poverty, and it refers to some one billion people in poverty in various parts of the world whose needs ought to be addressed.

The next important point they make is the suggestion that we should tax coal and petroleum products so as to enhance the capacity to compete on the part of renewable sources of energy. It describes what one European country is doing at the present time. It also goes on to describe the soaring sale of energy technologies and the progress made by the Government of Japan.

Then it devotes a full paragraph to the capacity of fuel cells to turn hydrogen into electricity. This is very important to Canada, because, as we know, we are at the cutting edge of fuel cell technology and manufacture, particularly with the Ballard people in Vancouver.

Then the rest is nice English literature, if you like.

These are two respected authors who some of you know already, because every year they produce a state of the earth book, which some people have criticized for being a bit too alarmist. But if one looks back at what they wrote 10 or 15 years ago, certainly on some occasions they predicted things that turned out to be so. I just thought it wouldn't harm us to put this in one of our files.

Moving on to the next item, it has to do with where we start today. Today, I believe, we start on page 2 of the small collection of amendments.

• 1550

The clerk reminds me that I forgot to mention you have a publication, in English only, from Fredericton, New Brunswick, from the Conservation Council of New Brunswick entitled Pesticides in Salmon Aquaculture in Southwest New Brunswick. It's a background paper and is there just for your information. It has been made available by the World Wildlife Fund of Canada. Thank you.

We will now move briskly to Madam Kraft Sloan's amendment, L-10.2. It's an amendment for clause 13 and deals with the environmental registry.

(On clause 13—Contents of Environmental Registry)

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you, Mr. Chair.

It's my understanding there was a government-friendly amendment to amend the original amendment I put forward. I think it was 14 years ago—it feels like that. Essentially, this widens the scope of information that would be included in the environmental registry to include notices of objection and any approval granted under the act, a copy of every policy and of every proposed regulation of order made under the act, and copies of documents submitted to a court by the minister relating to any environmental protection act.

The Chairman: Can we have an indication whether there is a friendly amendment?

Mrs. Karen Kraft Sloan: No, I believe this has been amended. Is that correct?

The Chairman: Have we already dealt with clause 13?

Mrs. Karen Kraft Sloan: This is it. That's what I understood, because the original amendment would have been in the large package.

The Chairman: Are you ready to move it?

Mrs. Karen Kraft Sloan: Yes, I'm moving it, Mr. Chair.

The Chairman: The member from York North has moved amendment L-10.2 on page 2 of the small booklet. Are there any questions or comments?

[Translation]

Mrs. Girard-Bujold.

Mrs. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Chairman, I have only one question. Why is it necessary to list everything: a) b) et c)? Why does something have to be added? We discussed this amendment a long time ago. It says:

... subject to the Access to Information Act and the Privacy Act,

(a) notices of objection...

Why is it important that it be mentioned in this clause?

[English]

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I have to apologize, Madam Girard-Bujold. It's my understanding you asked why these things are included. They allow for public comment and a more open and transparent process before they're decided on. They allow for more public involvement and accountability.

• 1555

[Translation]

Mrs. Jocelyne Girard-Bujold: Thank you.

[English]

The Chairman: Yes, you're right. I should alert members that motions NDP-16 and R-5 will not be moved if this amendment is carried. But we have this amendment before us, and the question is whether you're ready for the question.

The parliamentary secretary.

Ms. Paddy Torsney (Parliamentary Secretary to Minister of the Environment): Just in terms of the additional information, NDP-16 is in fact the same as the old L-10.2. So after debate and discussion and some reworking, we have the new L-10.2.

The Chairman: To the best of our knowledge...they're not quite the same.

Ms. Paddy Torsney: As it was being discussed at the time...

The Chairman: We are looking it up.

Ms. Paddy Torsney: It's almost identical.

The Chairman: It's almost the same as old L-10.2.

I take it there are no further questions and no comments.

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: I'm going to ask you to turn to page 3 of the small binder, please. There you have a motion in the name of Mr. Knutson, L-10.3.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I would ask that all my motions not be presented unless they have to do with the issue of residual. That's the only issue I would like to debate any further. If they have to do with the issue of residual, I'd ask that they be stood down. Otherwise, I'm not prepared to present any motions with my name on them.

The Chairman: So this motion is not presented.

Mr. Gar Knutson: Right.

The Chairman: All right. Thank you.

Ms. Kraft Sloan.

Mrs. Karen Kraft Sloan: If this is Mr. Knutson's intent, I would recommend the committee consider standing down any of the clauses Mr. Knutson wanted to submit amendments on, because there may be other members who would like to submit those amendments. We obviously need time to digest this information and make a decision as to whether we would like to move these amendments.

The Chairman: I'm sorry, you will have to make the decision as the motion arises. I will certainly call any motion today that is in the binder according to a progression that was worked out at three o'clock. If someone doesn't wish to move it, that is quite possible; and if someone else wishes to move it in a different name, that is perfectly all right.

We'll go now to page 64 of the large binder.

Ms. Paddy Torsney: I think there are no other amendments to clause 13, so we can call the question on clause 13 as amended.

The Chairman: Just a moment. We are still on clause 13 on page 64. It's motion R-6 in the name of Mr. Gilmour.

Ms. Paddy Torsney: You're right, Mr. Chair. I'm sorry.

• 1600

The Chairman: Is Mr. Gilmour ready?

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Is that number 64 in the big book?

The Chairman: It is number 64.

Mr. Bill Gilmour: Okay. The amendment reads: “shall maintain the Environmental Registry and subject to subsection (2.1)”. This ensures a minimal standard of accessibility and a period for public comment on the environmental registry. It's pretty straightforward and I move it, Mr. Chairman.

The Chairman: It sure is pretty straightforward.

Are there any comments or questions? The parliamentary secretary.

Ms. Paddy Torsney: Mr. Chair, they are cross-referenced. We may want to turn to our government officials for some further comment.

The Chairman: Who wishes to comment? Mr. Mongrain.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Environment Canada): The addition of the language to maintain the environmental registry confirms our intent. That's the first part of the Reform member's amendment. Subclause 13(2.1) in the amendment, where it states “shall ensure that access to the Environmental Registry is provided on the Internet”, is consistent with our intent for the registry. Subclause 13(2.2), however, creates some difficulty. We already have a 60-day comment period for certain regulations and orders under clause 332. There are, however, special types of orders—interim orders, emergency orders, where we would not want to have to wait the 60 days for the public comment period to expire.

Essentially, I am trying to get across the notion that in other sections of the bill ample requirements for public notice and comment are built in; I believe we've run into many of them already. Subclause 13(2.2) in the amendment would, in some cases, duplicate this and may conflict with powers in other areas.

The Chairman: Thank you.

Mr. Gilmour.

Mr. Bill Gilmour: I will withdraw this for now so I can look at that and leave the options open for a later date.

(Amendment withdrawn)

The Chairman: So it is understood the committee will adopt this clause, but should Mr. Gilmour, at a later date, require it to be reopened, it will require unanimous consent in case he wishes to move this amendment. Is that all right? Alternatively, I will not call this clause to be adopted as amended.

• 1605

Mr. Bill Gilmour: Let's leave this clause for a few days for us to check into it.

The Chairman: All right, we will leave it then the way it is. It has been stood.

(Clause 13 as amended allowed to stand)

The Chairman: We move now to page four of the small book, please, to an amendment in the name of Mr. Knutson. Is this a motion you wish to—

Mr. Gar Knutson: No, it's not. I'm not going to move it.

The Chairman: Not moved.

Mr. Gar Knutson: Our thinking has evolved since originally drafting this.

The Chairman: Fine, thank you.

Mrs. Karen Kraft Sloan: Mr. Chair, could we just wait for a moment of consultation on this, unless of course one of the members of the opposition would like to move it.

Mr. Rick Laliberte (Churchill River, NDP): It's coming.

Mrs. Karen Kraft Sloan: Good, thank you.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I have a similar motion, so having the weight of Gar's printout—

Mr. Gar Knutson: Move your own.

The Chairman: Would you like to explain it?

(On clause 22—Circumstances when an individual may bring an action)

Mr. Rick Laliberte: In clause 22, we're replacing line 8 on page 18 and it would start—

Ms. Paddy Torsney: I have a point of order. We also have amendment 10.8, which also affects clause 22 and also starts with line 8. So I think we need to have some sort of reorganization of amendments or something, because we've got more than one activity on the same line.

The Chairman: Yes, it touches on the same line, you are quite correct, and we have to start somewhere, so we intended to start with Mr. Knutson's 10.7. If that wording is exactly the same as Mr. Laliberte's then we still proceed with 10.7. If that doesn't carry then of course we will have to go to 10.8, right?

Ms. Paddy Torsney: Not technically, no.

The Chairman: It will not be moved again, you see.

Ms. Paddy Torsney: Well, it's also a bit of a heads-up to Mr. Laliberte that he may want to consider whether he wants to move 10.7 or 10.8.

The Chairman: Well, no, my understanding is that he's moving 10.7—

Ms. Paddy Torsney: Perfect.

The Chairman: —unless he means it differently. So I have the text of L-10.7 now in the name of Mr. Laliberte. And Mr. Laliberte was in the process of introducing it.

Mr. Rick Laliberte: This broadens the scope in legal terminology, so I guess it's also a reflection from the government's view how this would play out in terms of an individual. From what we understand, the legal description of a person and an individual are two different things. So would the government representatives be so kind as to share a light on how this would play out, because there are certainly bodies or groups of community members out there that may not be considered in this clause.

Mr. Duncan Cameron (Legal Counsel, Environment Canada): Mr. Chairman, in strictly legal terms the substitution of the word “person” for “individual” would open up the scope of these provisions to allow a body corporate, a corporation, to bring an environmental protection action. By using the word “individual”, as we have in the bill, it was our intention that this would be a mechanism available to individuals, as opposed to other types of legal bodies. So the effect of this amendment would be to open it up to corporations to file environmental protection actions instead of simply having it as a citizens' suit mechanism.

• 1610

The Chairman: Thank you, Mr. Cameron.

Madam Kraft Sloan, then Mr. Herron.

Mrs. Karen Kraft Sloan: Yes, I believe we've had a similar sort of discussion previously in this committee. This is one of the reasons why if we open the scope to include corporations then we open the scope to include incorporated organizations that represent public interest groups, who may well be in a better position to bring some of these actions or requests forward where it may be far too intimidating for individuals to do the same thing. I'll just leave it at that, because we've had this conversation before. I think it's important to widen the scope on this to ensure that the public interest is protected.

The Chairman: Thank you.

Mr. Herron, followed by Madame Torsney.

Mr. John Herron (Fundy—Royal, PC): Thank you, Mr. Chair.

I would like to speak in support of this amendment. I have the exact same one on page 73, which is PC 7.2, and Mr. Knutson had a similar amendment as well.

What we heard from witnesses on this particular point was there are organizations that have the greater community interest at hand that may be better fit to be involved, as opposed to an individual, given that the person may not have the resources or the critical mass to bring forward a complaint. So given the fact that three different political parties have flagged this as a potentially solid amendment, and that it does broaden the scope, I think it would be a good thing for us to have.

The Chairman: Thank you.

[Translation]

Mrs. Torsney.

[English]

Ms. Paddy Torsney: Thank you.

Mr. Chairman, I want to put on the record that the government does not support this amendment, that in fact there's a commitment to have citizen suits. It's intended for individuals to bring an action against someone who they think is not following the law. This is modelled after the Ontario citizen suit provisions.

The Chairman: Thank you.

[Translation]

Mrs. Girard-Bujold, please.

Mrs. Jocelyne Girard-Bujold: I have a question on the French translation of the English version. In English, we refer to "an individual", whereas, in French, we refer to a "particulier". To me, in French, there is no difference between "un individu" and "une personne". I don't understand. What do you want? I don't see why this term should be changed, because, for us, an individual is a person.

Mrs. Monique Hébert (Committee Research Officer): I'd just like to tell you, Madam, that, in case law, the word person has been interpreted as including corporations or organisations, which essentially are corporations. Therefore, there is a difference in law between the word "personne" and the word "individu" or "particulier". A person is an entity, which may encompass corporations.

Mrs. Jocelyne Girard-Bujold: Legally speaking.

Mrs. Monique Hébert: Yes.

Mrs. Jocelyne Girard-Bujold: Thank you.

[English]

The Chairman: Mr. Laliberte, a final word. It's nice to see you as a champion of the corporate world, Mr. Laliberte.

Mr. Rick Laliberte: I believe the public good is beyond singular. That is where this amendment is coming from, that the public can certainly organize itself, as an organization, at the community level or regional level, and some of them might be intercommunity or interprovincial or international in interest.

I would beg that the government really solidly look at this for the public good, because legally an individual is very specific; it means an individual might take on a huge responsibility of time and responsibility of costs, as opposed to a larger body that might be serving a municipal interest or a family or a neighbourhood, and in some cases might even be corporate. As you mentioned, there are corporations out there that want to protect their industry, and why couldn't they file in the circumstances of protecting their industry from the bad apples, so to speak, of an industry that might be abusing our environment?

Mr. John Herron: Mr. Chair?

The Chairman: Mr. Herron, briefly, please.

Mr. John Herron: I had one question that Mr. Laliberte just flagged.

• 1615

I would like to ask the officials, Mr. Chair, through you of course, what would happen if a given company found out that another company was causing some form of pollution that was affecting their operation? Could they sue or make a complaint as a company, or would one individual in the polluting company have to step forward?

The Chairman: It's a highly hypothetical case. Nevertheless, Mr. Mongrain.

Mr. Steve Mongrain: As the bill is written now, an individual in one of the companies would first have to ask for an investigation.

Mr. John Herron: An individual, not the company?

Mr. Steve Mongrain: It's an individual, as the bill is written. And there was an NDP motion, 16.1, that would have changed it to “person”. That's the first step in the right to sue: you have to ask for an investigation. As the bill is currently written, and I believe the clause is carried, an individual has to ask for an investigation. If the minister doesn't respond reasonably, or does not respond within a reasonable amount of time, then that individual can proceed with the environmental protection action—that is, the right to sue.

Mr. John Herron: That doesn't make any sense.

Mr. Steve Mongrain: If there is an alleged offence that results in significant harm to the environment.

The Chairman: Mr. Cameron, followed by Mr. Lerer.

Mr. Duncan Cameron: Thank you, Mr. Chairman.

I'd like to also point out, and I believe it's relevant to Mr. Herron's question, that of course the environmental protection action that's contemplated under CEPA is not the only legal proceeding available to a company in the event that there may be pollution causing it harm.

The first and prevalent form of law one would turn to is the common law itself, rather than this statutory form of action. Under the common law, as Mr. Herron described, if one's company is harmed by the actions of someone else, one is in a position where they can file an action in common law in negligence, and that would be the normal course of events. One would not have to have recourse to these provisions at all in the situation that was described.

This mechanism is very specific. This is a mechanism that allows citizens to have recourse to the courts where they have asked for an investigation and only where that request has not been met to their satisfaction. That is a very specific set of facts that is a prerequisite to this kind of proceeding.

The Chairman: Thank you, Mr. Cameron.

Mr. Lerer.

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Environment Canada): My colleague just made my point, Mr. Chairman.

The Chairman: Thank you.

Mr. Laliberte, to conclude.

Mr. Rick Laliberte: I wanted to say that our amendment by no means prohibits individuals from following through as singular persons, right? It's just that in light of consideration for community organizations, or interests at the community level for the public good, who may not have an abundance of lawyers in their voluntary pool, or who may not know the law, this triggers an investigation, which seems straightforward.

Mr. Harvey Lerer: Mr. Chairman, this provision does not trigger the investigation. What the provision is is that if they believe that there has been a problem, they can ask for an investigation, and if in their view there has been significant damage to the environment, and the minister has not dealt with it adequately, they have the right to bring a civil action against the alleged polluter. It is a recourse in civil action.

The Chairman: Thank you.

Are there any other questions?

Mr. Rick Laliberte: I want to understand this. If nobody applies, the trigger doesn't exist. So that's why I'm saying this is a trigger, isn't it? Without anybody applying, it's assumed there's no investigation required. This triggers the whole investigation process, the application.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: I simply wanted to point out that the environmental protection action is only available when an individual has requested an investigation and the response to that request has not been met. If you turn to clause 17 of the bill, you will see that individuals who are 18 years of age or older may apply to the minister for an investigation. The key word there is “individual”, individual citizens; they're the people who may apply for an investigation. For that very same reason, we have put in clause 22 the same word “individual” to allow those individuals the opportunity to bring an environmental protection action if they're not satisfied with the results of that investigation.

• 1620

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: Dealing back to the clause you referred to, clause 17, there was a motion made on, for memory sake, amendment NDP-16.1. Was that passed—

Mr. Harvey Lerer: I don't think so.

Mr. Rick Laliberte: —or was that efficiently defeated?

Mr. Harvey Lerer: I'm sorry, we shouldn't be answering that; the clerk should be.

The Chairman: It was defeated.

Mr. Rick Laliberte: It was defeated?

The Chairman: Yes.

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, first of all, individuals come together in organizations so that they have the ability and the resources to request actions that protect the environment, and while non-profit corporations have the ability to proceed in other arenas, through other methods, this is only when there is a direct effect against them.

In this situation, I don't believe that the common law in Canada holds that damage to the environment directly affects a group of citizens. So I think it's imperative in this situation that we widen the scope so that we encourage the ability of citizens, through incorporated public interest organizations, to take part in these actions.

The Chairman: Thank you.

The last word goes to Ms. Torsney.

Ms. Paddy Torsney: I would reiterate that the government does not support this amendment and that this is following along on the citizen suits that are in the province of Ontario.

(Amendment negatived—See Minutes of Proceedings)

The Chairman: Unless otherwise advised, I will then take it that amendment L-10.8 is withdrawn.

Mr. Gar Knutson: That's correct.

The Chairman: I take it also that motion L-10.9 is withdrawn.

Mrs. Karen Kraft Sloan: Mr. Chairman, I would like to move this amendment.

The Chairman: The amendment on page 6, amendment L-10.9, is moved by Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you, Mr. Chairman.

The effect of amendment L-10.9 on page 6 would be to add subclause 22(4) to clause 22. It reads:

(4) The court may award damages to the responsible Minister in cases where the harm to the environment cannot be restored or rehabilitated or where the Minister has incurred costs to address the harm.

I think you will agree that this reinforces the“polluter pays” principle, which is a principle underlying this bill.

A voice: It's only to the minister.

Mrs. Karen Kraft Sloan: Yes, to the minister.

These moneys can then be used for other environmental protection measures.

The Chairman: You have heard the explanation of the motion. Are there any questions or comments?

Ms. Torsney?

Ms. Paddy Torsney: I would just say that the government does not support this motion. If this were to pass, it would change the tenor of civil suits, and it certainly would include damages and things like that, which are not intended to be part of civil suits. So we don't support that.

(Amendment negatived)

• 1625

[Translation]

The Chairman: The next amendment is on page 74. It is from the Bloc Québécois, under Mrs. Girard-Bujold's name.

[English]

The parliamentary secretary.

Ms. Paddy Torsney: In terms of order, we were already on line 44, and BQ-11 is affecting lines 12 and 13, so I think we've missed the opportunity to present that.

The Chairman: Yes.

Ms. Paddy Torsney: I think there's a problem with the order. We've moved beyond the lines that are affected by BQ-11, so it's out of order at this point. We were on line 44...

The Chairman: That was because of an oversight by the chair. I just didn't listen carefully to the clerk. I apologize.

Ms. Paddy Torsney: Well, the clerk will have to take appropriate action.

The Chairman: The clerk is known for a high level of charitable feelings.

Ms. Paddy Torsney: Good thing for you.

[Translation]

Mrs. Jocelyne Girard-Bujold: Mr. Chairman, I cannot move my amendment?

The Chairman: If you are ready to do it.

Mrs. Jocelyne Girard-Bujold: I want to replace "investigation and report within a reasonable time" with "investigation and report within 30 days". I want to indicate a specific length of time for the drafting of the report. The report is drafted by the minister, and I give him a limited time to do so.

The Chairman: Thank you, Mrs. Girard-Bujold.

[English]

Do you have any questions or comments, Madam Torsney?

Ms. Paddy Torsney: Thank you, Mr. Chair.

I'd just like to say that the government does not support this change. If you read it as it occurs in the bill, you could have a situation where the minister is in the middle of doing an investigation as asked under clause 17 and the investigation's under way. It's taking longer because it's fairly complicated and they're doing their work. And all of a sudden the 30 days expires and someone's entitled to bring an action. Then the resources are devoted to dealing with the action rather than dealing with the investigation.

If we're talking about limited resources, surely the onus is to do the right thing. Do the investigation and stop the problem, rather than moving into the court system.

The Chairman: Thank you.

Mr. Gilmour.

Mr. Bill Gilmour: Mr. Cameron, could you comment on what “within a reasonable time” means in the legal timeframe?

Mr. Duncan Cameron: Mr. Chairman, it would mean precisely what's reasonable in the circumstances of the case. We have had situations where investigations have taken considerably longer than 30 days to conclude. Certainly to limit that period of time to 30 days could have tremendous difficulties if the minister is still in the course of conducting an investigation. So the word “reasonable” is intended to reflect a period of time that is appropriate and reasonable to the circumstances of each situation.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: We're now on page 75.

[Translation]

Mrs. Girard-Bujold, it's your motion.

Mrs. Jocelyne Girard-Bujold: Yes, Mr. Chairman.

• 1630

[English]

The Chairman: It is similar to R-7, which can't be moved if this carries.

[Translation]

Mrs. Jocelyne Girard-Bujold: With this amendment, I want to delete the word "significant". I am saying that any type of harm is sufficient for an action to be justified. It is not necessary to add "significant". Whenever some harm is caused, it is of great significance that something be done. Therefore, I think that the word "significant" is redundant and I want it to be deleted.

The Chairman: Thank you, Madam. You have heard Mrs. Girard-Bujold's explanation. Are there any questions?

Madame Torsney.

[English]

Ms. Paddy Torsney: Thank you. I just want to identify again that this section is modelled after the Ontario Environmental Bill of Rights, and the inclusion of “significant” is to ensure that in fact frivolous suits are not launched.

The Chairman: Thank you.

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I'd like to direct a question to Madame Hébert. Perhaps you can give us a legal interpretation of significant harm. I think a number of environmental organizations and public health groups came before the committee and stated that “significant” may pose too high of a barrier within the courts to be enforced.

Ms. Monique Hébert: Yes, Mr. Chairman, it seems to me that “significant” would at least mean that there has to be some level of serious harm here. It's more than just damaging the environment; it must be significant damage. I believe that would be more than material damage to the environment. It has to be a higher level than material damage. How high that is is very difficult to say.

Mr. John Herron: The judgments say that...

Ms. Monique Hébert: Yes, the courts would have to interpret this to see if in fact the infraction did result in significant harm or not. In terms of case law, I don't know of any cases where that was considered.

Mrs. Karen Kraft Sloan: It is my understanding that the Ontario Bill of Rights is a little-used piece of legislation because of so many barriers, and this is one of the crucial barriers in that.

Ms. Monique Hébert: Yes.

Mrs. Karen Kraft Sloan: Thank you.

The Chairman: Mr. Herron.

Mr. John Herron: I'm a little troubled by the fact that the judges would be forced to have interpretative licence on what “significant” would be.

[Translation]

So I think it is a useful change.

[English]

The Chairman: Are there any further comments?

[Translation]

Mrs. Girard-Bujold.

Mrs. Jocelyne Girard-Bujold: Mr. chairman, should an action be frivolous, the minister could always dismiss it. We are talking about harm to the environment. I think it is not necessary to add the word "significant". When harm is caused to the environment, it is always significant. Why specify "significant"? I think that, in French, the word "atteinte" means that something happened and that it must be addressed. Therefore, the word "significant" is not necessary.

The Chairman: Thank you.

Mrs. Torsney.

[English]

Ms. Paddy Torsney: First of all, let's go back a second here. Clause 17 talks about how an investigation is being launched, how there's a process, what will happen. If something is not dealt with properly, then there is a mechanism for individuals to bring an action against the government. Harm to the environment—my breathing and giving you this explanation is causing harm to the environment; so is the heat we're operating to keep this room warm. It has harm to the environment. But surely the intention is to do something when there is something that is measurable, that is significant.

As to whether or not judges in this country are able to interpret things, they certainly will be interpreting “reasonable”, which just passed by the committee, and they will be able to interpret “significant” as well. That's why we have case law.

The Chairman: Mr. Lerer, followed by Madame Kraft Sloan.

Mr. Harvey Lerer: Mr. Chairman, the suggestion was made that somehow the minister could dismiss this action. That is not available to the minister. This is an action brought to the courts, not to the minister.

The Chairman: Thank you.

Madame Kraft Sloan followed by Mr. Herron.

Mrs. Karen Kraft Sloan: Mr. Herron can go first.

The Chairman: Mr. Herron.

• 1635

Mr. John Herron: I think the parliamentary secretary is talking apples and oranges here, because the reference before in terms of reasonable is related to something different. As Madame Hébert pointed out, it's a matter of the harm that's actually done to the environment. She said “significant” would be very interpretive at that point.

So I don't think the two are related. I'd like to ask the officials if they think they're apples and oranges.

Ms. Paddy Torsney: You won't help the environment by answering.

Mr. Duncan Cameron: I can't comment on apples and oranges, but I would like to make one point of clarification. In order for this action to proceed, the judge would have to be satisfied with a number of things: first of all, that the minister's response to the request for an investigation was unreasonable; and second, that the harm that has been alleged, the harm to the environment, must have been of a significant degree. That is a matter that is entirely within the discretion of the court to determine. Frankly, the analogy to the issue of reasonable time is very similar to this in the sense that that too is a question the judge will have to determine as to whether it's appropriate or not.

Perhaps it is a case of apples and apples after all.

The judge, in deciding whether to allow the action to proceed, would have to be satisfied of those preliminary things, and it's impossible for us in this context to ascertain what “significant” would be. It's simply a term that's used to signal to the court that it must be some degree of harm greater than minimal harm to the environment.

The Chairman: Madame Hébert.

Ms. Monique Hébert: I'd just like to point out that if one argues the opposite case, these actions are only limited to offences under the act. We're not just talking about any actions. They're only available in relation to offences. When one looks at the remedies the court can have, the kinds of orders it can make, it could compel the defendant to stop committing the offence. The extent of the harm to the environment is of course a consideration, but if you set that aside you're still dealing with an offence before you can even commence an action. In my judgment, this might colour one's opinion on whether significant harm to the environment would be required or not, given that we are at all times dealing with offences under the act.

Mr. John Herron: Tangerines and McIntoshes.

The Chairman: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chairman, “significant” would indeed raise the bar. The judge has to make a decision about harm. Whether air that you breathe out of your mouth is harmful or not, obviously a judge is going to decide whether that's a frivolous action or not.

I would also like to point out that if we want to start comparing the Ontario Environmental Bill of Rights...there are two very important measures that are missing in Bill C-32, and I would be more than happy to support the government's amendment to include them in this legislation if we want to bring it in line with the Ontario Bill of Rights. Bill C-32 does not apply in cases of imminent contraventions of the act, and it prevents citizens from going to court in emergency situations because, first of all, they have to fill out a request for an investigation under clause 17.

I think we've had a very good discussion on the issue of significant harm and how it raises the bar of proof. I think judges have to make a decision as to what is harmful to the environment, and again I would be more than happy to support government amendments that bring the bill in line in these two regards.

Thank you.

(Amendment negatived [See Minutes of Proceedings])

The Chairman: Then we move to page 76. There is a motion in the name of Mr. Gilmour.

Mr. Bill Gilmour: I will not move that motion.

• 1640

The Chairman: The next item is on page 77 in the name of Madame Girard-Bujold.

[Translation]

Mrs. Jocelyne Girard-Bujold: This amendment is also on clause 22. In French, it is on line 28, page 18, which would be replaced with:

est susceptible d'empêcher la continuité de l'in-

So I'd like to replace the word "pourrait". It is a technical amendment whereby the words "pourrait empêcher" are replaced with "est susceptible d'empêcher". The word "pourrait" is linked to the action, and the word "susceptible" to the process. If an order is "susceptible" to prevent, it could not prevent. In French, "susceptible" refers to something that is happening gradually; "pourrait empêcher" refers to a concrete act that is being prevented from taking place. Those words are very different, and I think that, in this clause, the terms "susceptible d'empêcher" should be used, because they very much reflect what is meant.

[English]

Ms. Paddy Torsney: Mr. Chairman, just to clarify, it says “may” in English, not “could”. I don't know if it was just a question of interpretation or not, but certainly the way it's drafted is clear or clearer than what Madame Girard-Bujold is suggesting.

The Chairman: Madame Girard-Bujold is evidently moving a refinement to the French text. She's working on the French text and she's refining it with a nuance that does not exist in the present text. There's no doubt that there is a very clear intent to achieve that. As a result, by reflection, the English text is adjusted. Also, it is not really modified in a substantive manner. So the members would be wise to look at the French version to appreciate the intent of Madame Girard-Bujold.

Ms. Paddy Torsney: Mr. Cameron has further comments.

The Chairman: Mr. Cameron, please.

Mr. Duncan Cameron: Mr. Chair, I checked with the French drafters on this motion and I was informed that this is in line with drafting conventions, that the term pourrait is appropriate to this context, just as the word “may” in English is the appropriate term to indicate a discretionary power. So from the perspective of the Department of Justice and drafting conventions, we believe the wording in the bill is correct and proper as it is.

(Amendment negatived)

(Clause 22 agreed to)

(On clause 24)

The Chairman: I take it that L-11.1 is withdrawn, unless it is moved by someone else.

Mrs. Karen Kraft Sloan: I'll move it, Mr. Chairman.

Mr. Chair, the intent of this amendment is to replace lines 13 to 25 on page 19 with the following paragraph:

was taken to protect national security, support humanitarian...or defend a member state of the North Atlantic Treaty Organization.

• 1645

Clause 24 states: “An environmental protection action may not be brought if the alleged conduct (a) was taken”, and then there is a list of exemptions. The concern here is that some of these exemptions are very broad. It allows for a lot of excuses as to why an environmental protection action may not be taken. The intent of this amendment is to tighten it up to ensure that there are no grey areas and no excuses, unless there's a very good reason why an environmental protection action can't be taken.

Ms. Paddy Torsney: Perhaps the mover needs a bit more time. In fact, the effect of the amendment, were it to pass, would be to delete paragraph 24(b), which says “was reasonable and consistent with public safety”. The other would stay.

Mrs. Karen Kraft Sloan: Well, I'm looking at someone else's amendment, so...

Ms. Paddy Torsney: Subparagraph 24(a)(ii) would still be part of the bill, but paragraph 24(b) would not be part of the bill if amendment L-11.1 were to pass. Subparagraph 24(a)(i) would also be deleted.

The Chairman: It may be that Madam Kraft Sloan is moving an amendment that would go from lines 13 to 23. That's what is actually being done, if one looks at the text.

Ms. Paddy Torsney: Right. So the effect of it, if it were to pass, would be that—-

The Chairman: Paragraph 24(b) would be retained.

Ms. Paddy Torsney: No. Subparagraph 24(a)(ii) would be retained, but both subparagraph 24(a)(i) and paragraph 24(b) would be deleted.

The Chairman: It goes to line 25 as it is printed, yes, but I wonder if the original drafter of the amendment didn't intend to leave paragraph 24(b) since the amendment stops with a reference to NATO.

Ms. Paddy Torsney: They took out the “and”. They were trying to delete paragraph 24(b) and subparagraph 24(a)(i).

The Chairman: Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: Mr. Chair, I apologize to the committee, because this has just been thrust upon me. It's my understanding that lines 13 to 25, which include paragraph 24(b), would be deleted and replaced by this phrase. To say that an alleged conduct was reasonable means that there is a lot of wiggle room as to what is reasonable to disallow an environmental protection action, and it provides too large a loophole. I think more than anything else that is the line that should be deleted, because it's far too broad in general. Many people can make arguments about what is reasonable.

The Chairman: Thank you. So the proposed amendment would replace everything between lines 13 and 25.

I would like to ask Mr. Cameron whether the text of clause 24 as it is in the bill would therefore permit the use of substances such as Agent Orange. Would that be a way of illustrating the scope of subparagraph 24(a)(ii), if Agent Orange were on the schedule, of course?

Mr. Duncan Cameron: Rather than answer with regard to a specific substance, I would refer to these words and answer by saying that if the conduct in question were such that it was taken to protect national security, support humanitarian relief efforts, participate in multilateral military or peacekeeping activities under the auspices of NATO, then the environmental protection action could not be brought. Based on my lay understanding of what Agent Orange is, that may be the case. But the key here is that military activities that fall within the scope of this description would be taken out of the scope of activities that could be the subject of an environmental protection action.

• 1650

The Chairman: It leaves the door open for the use of gases in the case of World War I, then, if that kind of gas were on the schedule.

Mr. Duncan Cameron: I'm not sure that being on the schedule is particularly—

The Chairman: Necessary?

Mr. Duncan Cameron: —key to your question. I think the better way to ask it would be that if there were an alleged offence under the act and if there were a request for an investigation and the minister's response to that request was unreasonable, plus the action in question fell within this general description, then you could not bring an environmental protection action, even if all the other elements to bring an action were met.

The Chairman: Thank you. That's very helpful.

(Amendment negatived)

(Clause 24 agreed to)

(On clause 31—Undertakings to pay damages)

The Chairman: We go to the next page, L-13.0.1, which is without a sponsor, unless there is one now.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I would like to move this amendment, Mr. Chair. The intent of this amendment is to put a cap on the amount of security that is required to be put down when people are involved in court cases. Unless a cap is specified, it's a real disincentive for public participation. If this part of the bill is about public participation, we would want to encourage that as much as possible. It would impose an unnecessary burden if the security amount was a lot higher. So for those members of the committee who want to encourage public participation in this area, I would encourage you to support this motion.

The Chairman: All right. The parliamentary secretary, please.

Ms. Paddy Torsney: Thank you.

I think our officials have a different interpretation as to the effect of this motion if it were to pass.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: Mr. Chairman, perhaps I could describe how such an undertaking may be given. Once the action is started, the plaintiff could be in a position where they wanted to ask the court for an interim injunction to stop the action that has been complained of. Then there would be a separate hearing before the judge to determine whether or not that injunction would be granted. There are certain tests in law as to whether an injunction will be granted, and those tests include things such as whether there would be irreparable harm, whether or not the action being complained of could be compensated after the fact, and so on.

It's in the context of asking the court for an injunction that you may find a discussion among the parties and the judge as to whether or not the plaintiff would be willing to give an undertaking to pay damages to offset any loss the defendant may suffer if at the end of the hearing the plaintiff is not successful. Another way of saying that is that the applicant, or the plaintiff in this case, may offer to put up a security, which could be paid either to the defendant or to the court, that could be used to offset the costs to the defendant if at the end of the court hearing the case was not successful.

That security is referred to in this clause as an undertaking to pay damages. It's a fairly common technique where one is asking for an injunction and if the injunction is granted there could be a significant loss, financial or otherwise, to the defendant. So plaintiffs will sometimes offer—and the rules of court certainly provide for this—to put up a security in the expectation that at the end of the day they will be successful and that security will not be cashed in.

• 1655

One of the things the court may consider in deciding whether to issue an injunction is precisely whether a security or an undertaking will be offered. If it is, one could imagine the judge will be more receptive to granting an injunction, realizing that the harm to the defendant will be compensated if the case is not successful. This is something the court will take into consideration in deciding on balance whether to grant the injunction.

If you look at the way we've worded clause 31, we simply indicated that in deciding whether to dispense with such an undertaking the court may consider whether there are special circumstances. We've left it broad and discretionary, realizing this is the domain of the court.

My only comment on putting a limit—and I'd point out that $500 is a very small limit—is that may in fact act as a disincentive to the court issuing an injunction. I realize it was raised earlier when we were discussing this, that this is a clause that comes from the Quebec legislation. We looked at the Quebec legislation, and sure enough, this is what it says: there is a $500 ceiling in it. But I would tend to think, from my experience, that if the court were limited to receiving an undertaking of only $500, in the mind of the court that might not be sufficient to offset the harm to the defendant and therefore it might act as a disincentive to granting an injunction. For that reason I'm not sure the effect of the motion is in line with the spirit of wanting to encourage this kind of access to the courts.

The Chairman: Thank you, Mr. Cameron.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: First of all, we've denied the ability of incorporated environmental organizations to participate in many aspects of this bill, so that has a restriction on the resources that are available to individual citizens. I'm not a lawyer, so I'm certainly not able to argue with you the finer points of law, but it seems to a layperson's ears that what you're telling me is a court or a judge is only interested in proceeding with the possibility of an injunction if the individual bringing about the charges, the plaintiff, has money, and not whether it's a good case in terms of the effect on the environment.

This is certainly discouraging to me, and it also further reinforces the many barriers that are in this clause that will not allow real public participation. That's certainly the message I've been given on this.

Thank you.

The Chairman: Thank you. Mr. Herron.

Mr. John Herron: Mr. Chair, I'd like to ask the officials, since Mr. Cameron cited the fact that Quebec utilized the same $500 figure, are there any precedents under Quebec law where a judge decided not to proceed with any kind of an injunction in that regard? Has it actually been a hindrance, or is that just theoretical?

Mr. Duncan Cameron: Well, we've looked into this, and one can't answer that, because we're talking about the exercise of discretion. It's impossible to answer whether that was a factor in the mind of the judge in deciding whether to refuse to grant an injunction. But if the purpose of the undertaking is to offset the possible financial harm to a defendant in the event that the case is ultimately not successful, one can only imagine that $500 is a very small amount of money, and if that was the ceiling the judge was able to impose on an undertaking such as this, it certainly would be a disincentive in the vast majority of cases.

Mr. John Herron: Mr. Chair, I would argue that given the fact that we won't enable community groups to actually work as a separate entity, $500 could be a significant amount of money to a given individual.

• 1700

Mr. Duncan Cameron: That's absolutely right, but you have to understand that—

Mr. John Herron: I mean, Mr. Martin said last night that a $3 tax cut was a significant amount of money.

Mr. Duncan Cameron: You have to understand what the effect of this amendment would be. It would be to say that no undertaking could be more than $500. Well, if you're a judge hearing a case and you're deciding whether to grant an interim injunction or not, you want to balance a number of factors. One of the factors might be whether it is fair in the circumstances to all parties, including the defendant, realizing that the case may not in fact ultimately be successful. So the purpose of the undertaking is to encourage the judge, if you will, to grant the injunction on the realization that there will be money available in the event the case is not successful. But if you limit the scope of that undertaking to only $500, I have to say that would operate as a disincentive.

The Chairman: Thank you, Mr. Cameron.

Madam Kraft Sloan, followed by the parliamentary secretary.

Mrs. Karen Kraft Sloan: Well, I can only reiterate my point. It is very disappointing that we did not allow individuals to come together in incorporated community organizations and public interest groups to pursue these things. If you feel $500 is too low an amount, perhaps through you, Mr. Chair, we could discuss an amendment that would cap it at say $1,000 or something.

The Chairman: The parliamentary secretary.

Ms. Paddy Torsney: I think I, for one, have faith in our judges in Canada, mostly, and they are making decisions and using their discretion in setting an appropriate amount for undertakings. And just so people understand what getting an injunction might mean, it might mean saying to a company that's producing widgets worth millions of dollars a day that because of whatever is going on that the individual is concerned about, you want the company closed until the case is decided. You want it to close down. So the judge has to say “Is it serious? Are they serious that there's going to be such a demand among the public for closing down this company that the best they can do is undertake to the limited amount of $500, when that's about five seconds of this company's operation?”

Mr. John Herron: I would think they'd be more reasonable than that.

The Chairman: Would you allow the parliamentary secretary to complete?

Ms. Paddy Torsney: Anyway, that's what an injunction could mean. The judges have discretion. They award things that are appropriate, and if they're not appropriate there's an appeal process. So an undertaking does not necessarily mean you have to put the money on the table either.

The Chairman: I take it there are no further comments. Are you ready for the question?

Mr. John Herron: Is there a friendly amendment on the table?

The Chairman: There is no amendment on the table.

Mrs. Karen Kraft Sloan: I would welcome a friendly amendment from Mr. Herron.

Mr. John Herron: I would say my sense is that a friendly amendment may not necessarily have any more appetite on the government's side. So we'll vote on the amendment we have.

(Amendment negatived) [See Minutes of Proceedings]

(Clause 31 agreed to)

• 1705

(On clause 32—Stay or dismissal)

The Chairman: Would you please turn to page 9. There is a motion without a mover. Do I take it there is no mover for motion L-13.0.2?

Mrs. Karen Kraft Sloan: At this moment I'm not prepared to make a decision on whether I would move this, Mr. Chair.

The Chairman: Then this motion is not moved.

Mrs. Karen Kraft Sloan: Okay, that's fine, although it's unfortunate.

(Clause 38 agreed to)

(On clause 47—Guidelines)

The Chairman: I would ask you to move to page 10, amendment L-13.4.0, in the name of Madame Kraft Sloan.

This amendment, I am told, is out of order.

Mrs. Karen Kraft Sloan: Why?

The Chairman: It amends the entire clause; therefore, all the—

Mrs. Karen Kraft Sloan: No, it doesn't.

The Chairman: —members who oppose this entire clause have to do is vote against the clause. I will call the clause for a vote, since the amendment deletes all the lines of clause 47.

If you'd like to know the source of the objection, it's the sixth edition of Beauchesne's, citation 698(6). That makes the chair look very learned, but he is not.

Madam Parliamentary Secretary.

Ms. Paddy Torsney: Mr. Chairman, I would just add further clarification for those who haven't necessarily had this happen before.

If the committee were to vote against a clause, the effect of it is that the bill goes ahead without that clause in the bill. An amendment to delete a clause, which has the effect of removing all the lines in the clause, is the same thing as a vote against the clause in whatever state it finally arrives at the committee.

Mr. John Herron: Mr. Chairman, is it appropriate to have a debate on whether a clause should proceed or not?

Ms. Paddy Torsney: Sure.

The Chairman: I am also told by the clerk that according to another citation in Beauchesne's, the member may present this amendment at the report stage. Don't ask about the consistency of these two rulings. Nevertheless, the clerk has done the research and has come up with these two rulings.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would also like to point out that there is an amendment L-13.4.0.1, in the name of Madam Carroll, the Liberal member from Barrie—Simcoe—Bradford. She would like to amend sections of the same clause. If we have a debate on this clause in terms of whether to accept it or not, we will not be able to go back to Madam Carroll's amendment if we carry the clause.

The Chairman: No, I will not carry the clause. She is not present, so we will wait for her.

Mrs. Karen Kraft Sloan: So we're going to stand it?

The Chairman: Yes, but that's another matter.

Mrs. Karen Kraft Sloan: So if I leave, are all of the clauses I have amendments for going to be stood as well?

The Chairman: Your amendment is out of order, Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I know my amendment is out of order, but you are going to stand this clause because Madame Carroll is not present.

The Chairman: Would you allow me to reach that point when I make the announcement? We haven't yet reached that point.

Mrs. Karen Kraft Sloan: I'll speak on a point of order. I thought we were going into debate on whether we were carrying this clause or not.

The Chairman: We have had an explanation by the parliamentary secretary. You are fully entitled to give an explanation as to why you will vote against it if you wish to do so. But because of Madam Carroll's amendments, the chair will not call the clause after the vote. We can't have a vote on the clause.

• 1710

The clerk is very helpful, as usual. This amendment, L-13.4.0, is not before us because it is out of order.

For the next amendment in the order of things, according to the rules we adopted at the beginning of this long journey, we turn to page 99 of the large book. Could I ask the members to do that?

Madam Torsney.

Ms. Paddy Torsney: Mr. Chair, in terms of fairness, when we haven't had a member here who was a proponent of something, we stood down the whole clause. We could stand down clause 47.

The Chairman: We can still keep that amendment in the name of Aileen Carroll, no doubt.

Ms. Paddy Torsney: Alternatively, we could just stand down clause 47 until she is present.

The Chairman: Fine, we will stand the whole clause.

Ms. Paddy Torsney: There are several amendments to clause 47.

(Clause 47 allowed to stand)

(On clause 48—National inventory)

The Chairman: Could you all turn to page 108, which is a motion in the name of Mr. Laliberte. It is NDP-20.1, and it amends clause 48.

Ms. Paddy Torsney: Just as a bit of a recap, Mr. Chairman, when we discussed NDP-20.1 earlier, I think we thought it was not constitutional. It was beyond our jurisdiction.

The Chairman: The clerk informs me that we have a note to the effect that when it was stood earlier we were to ask Mr. Cameron to comment at the next opportunity.

Are you in a position to comment, Mr. Cameron?

Mr. Duncan Cameron: Yes, I can repeat the comment I made the last time, which was to the effect that we do not believe this clause is constitutional. We believe it goes beyond the scope of federal jurisdiction.

The effect of this amendment, Mr. Chairman, would be to require pollution prevention plans in respect of many substances that have not been determined to be toxic. As the Supreme Court ruled in the Hydro-Québec case—and I would point out that it did so by a majority of one—federal jurisdiction to regulate toxics under the criminal law power is dependent on the determination of toxicity. What this amendment would do is purport to regulate substances for which that determination has not been made. For that reason, we believe this amendment goes beyond the scope of federal jurisdiction.

Perhaps I could also remind the chair and the committee that there was a fairly lengthy discussion when this motion was discussed previously. My opinion was sought, as were the opinions of Mr. Moffet and Ms. Hébert, and my recollection is that we were in agreement that there were some serious questions as to the constitutional validity of this amendment. I certainly stand by the position I expressed previously.

The Chairman: Thank you, Mr. Cameron.

Mr. Laliberte, having heard this, do you still wish to move your amendment?

Mr. Rick Laliberte: Yes, I do. I believe the intention of the motion speaks for itself. I would be prepared to move it, and I challenge for support.

• 1715

In terms of acquiring a list of the substances and having nobody prepare actions, I think it would be timely to start a prevention plan. I don't know if the government officials would like to take us through the journey that got us here and where it's going from here on in, but wouldn't it be timely to have a planned preparation taking place at this point? I notice the tracks. They're very articulate on how this journey of pollutants and of requiring lists takes place. Maybe they'd want to share with us and brighten our view of the day.

As for the constitutional question, I beg to differ on that issue. If the precautionary principle is the guiding principle of this act, I think it would be very timely to start looking at prevention plans. If they're not deemed toxic at the time, it may be that the scientists don't have the necessary technology at the time, as we have discussed many times in this act.

The Chairman: Madam Parliamentary Secretary.

Ms. Paddy Torsney: Just to recap, the government isn't supposed to pass laws that it believes will not withstand a court challenge. We believe it would be unconstitutional for us to require pollution prevention plans for non-toxic substances. It would be getting into a jurisdiction in which we don't have responsibility. So I would not be supporting this amendment.

(Amendment negatived) [See Minutes of Proceedings]

(Clause 48 agreed to)

The Chairman: We could move to clause 110, but we will not be able to move it, given Mr. Lincoln's absence. It is the same as clause 111.

Mr. Laliberte, I wonder if you would want to defer to Mr. Lincoln, when he can move it tomorrow.

Mr. Rick Laliberte: I believe it would be timely for us to adjourn for the day, if you would consider something like that. I'm battling a flu, and I would hate to share it.

The Chairman: Does that mean you won't be here tomorrow morning?

Mr. Rick Laliberte: Oh, no. I'll be here with bells a-ringing.

Mr. John Herron: I won't be here tomorrow.

The Chairman: Perhaps we should take your advice, Mr. Laliberte. The next motion would be in the name of the member from York North, so we had better start fresh in the morning. It being almost 5.20, we will take it from there.

We'll adjourn until tomorrow morning.