Past Session:

Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 13 - Evidence

OTTAWA, Thursday, September 20, 2001

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S-18, to amend the Food and Drugs Act (clean drinking water), met this day at 9:32 a.m. to give consideration to the bill.

Senator Nicholas W. Taylor (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I call the meeting to order.

I welcome our witnesses, Mr. De Montigny and Mr. Faggiolo from the Department of Justice. Please proceed with your presentation and we have questions following that.

Mr. Yves De Montigny, Senior General Counsel, Department of Justice: Honourable senators, I am pleased to have this opportunity this morning to provide you with a general overview of the constitutional authority both of the federal and of the provincial legislators to enact legislation with respect to drinking water.

As you know, water is not a subject that has been specifically allocated by the Constitution Act of Canada to either level of government. Other vital areas where there is shared jurisdiction include health, environment, inflation, and a host of other issues that were not dealt with in the Constitution Act, 1867. In those cases, both levels of government have authority to enact legislation that may affect, in this case, the water that Canadians drink.

In a 1997 case involving Hydro-Québec, the Supreme Court of Canada upheld federal legislation that empowered the Minister of Health and the Minister of the Environment to determine what substances are toxic and to prohibit the introduction of such substances into the environment except in accordance with specified terms and conditions. What is important is that the courts held that this legislation fell within Parliament's power to enact criminal laws. We will return to this subject later.

The court took pains to point out that the use of the federal criminal law power in no way precluded the provinces from exercising their extensive legislative powers under section 92 of the Constitution Act, 1867 to regulate and control the pollution of the environment.

If I may just quote from Justice La Forest, who wrote the main opinion in this case, he put the matter this way, it is a useful introduction for my comments:

The situation is really no different from the situation regarding the protection of health where Parliament has for long exercised extensive control over such matters as food and drugs by prohibitions grounded in the criminal law power. This has not prevented the provinces from extensive ly regulating and prohibiting many activities relating to health. The two levels of government frequently work together to meet common concerns.

We should bear this in mind for the rest of my presentation because much will turn on the respective role of both the provincial and federal legislators and government.

Let us first deal with the provincial authority to deal with drinking water and health concerns in this respect. Historically, the provinces have been largely responsible for the delivery and safeguarding of drinking water in Canada. This responsibility stems not only from various heads of jurisdiction in the Constitution Act, 1867, but also from the fact that the provinces are the owners or proprietors of the Crown in each province for most public lands within each province's boundaries. The provincial Crown has the same kind of powers over its property and the use of that property that other legal persons may have on their own property.

It should be noted that the Crown in right of the provinces might be bound, even in the use of that power that they exercise as proprietor of the resource, by valid federal legislation in the exercise of their proprietary rights.

That is one side of the question. The other source of power that the provinces exercise is that which comes directly from the distribution of legislative powers in the Constitution Act, 1867. I will list some of these powers to give you an idea of the ambit of some of these powers and the various heads of jurisdiction that could be used in that respect.

The first head of power that you find in the Constitution Act, 1867, is paragraph 92.5, which gives the provinces authority to make laws in relation to the management and sale of public lands belonging to the province. Obviously, legislation governing the use of public lands and the water on these lands can significantly affect the delivery of drinking water.

Another head of jurisdiction for the provinces is their jurisdiction over local works and undertakings, which stems from subsection 92.10 of the Constitution Act, 1867. As a general rule, this would include facilities such as water treatment plants, of course. That is another major source of jurisdiction for the provinces in dealing with drinking water.

Another relevant paragraph, 92.8, gives the provinces jurisdiction in respect of municipal institutions, which, as we know, deal with most of these water treatment plants.

Perhaps the most important sources of jurisdiction for the provincial legislators are: Subsection 92.13. Property and Civil Rights in the Province; and Subsection 92.16. Generally all Matters of a merely local or private Nature in the Province.

These two heads of power provide extensive authority to legislate in respect of privately-owned property in the province. They give the provinces broad legislative jurisdiction over numerous matters that can affect drinking water. As examples, we have environmental protection, land-use planning, zoning, water conservation, flood control, et cetera.

Professor Peter Hogg, is a leading expert in Canadian constitutional law. In a discussion on jurisdiction over the protection of the environment in Constitutional Law of Canada, he wrote:

The power over property and civil rights (s.92(13)) authorizes the regulation of land use and most aspects of mining, manufacturing and other business activity, including the regulation of emissions that could pollute the environment. This power, and the power over municipal institutions (s.92(8)), also authorizes municipal regulation of local activity that affects the environment, for example, zoning, construction, purification of water, sewage, garbage disposal and noise. The provinces can also control activities on provincial public lands (s.92(5)), which contain much mining and lumbering. The provinces also possess the power to tax (s92(2)), and can use it to tax the consumption of products that cause pollution, such as gasoline, and to exempt products that reduce pollution, such as insulation.

Such is the ambit of the provincial jurisdiction, and this is, in fact, the menu of powers that the provinces can use to protect water quality and the water that we drink.

Before I conclude, I should also add that the Constitution Act of 1982 included another power to the list of provincial jurisdictions, and can be found in section 92A(1). It confirms that a province has legislative jurisdiction over the development, conservation and management of non-renewable natural resources and forestry resources, as well as over the development, conservation and management of sites and facilities in the provinces for the generation and production of electrical energy.

As you will understand, legislation governing the exploitation of these resources can affect the quality of the water.

The last power that I should mention in the realm of provincial jurisdiction, is that found in section 95 of the Constitution Act, 1867, under which the provinces share jurisdiction with the federal government over agriculture. Such legislation could also touch on matters that affect the water supply, for example irrigation and regulating the run-off from agricultural operations. Those are the areas of legislative authority available to the provinces to deal with the quality of drinking water.

Let us now examine the federal power that could be used as well to deal with this problem.

As is the Crown in right of the provinces, the federal Crown is also the owner of public lands and, as such, has the same right as a legal person, or as the provinces, to do anything that we citizens could do with our own property. That is one source of power for the federal government to access.

In addition to these rights, there is also section 91.1A of the Constitution Act, 1867, in which Parliament has the same authority as the provinces to make laws in respect of federal, public property. This is the equivalent to the list of provincial powers.

In addition to powers relating to the ownership of land, you will find in the paragraphs under section 91 of the Constitution Act, a host of provisions that give legislative authority to Parliament to deal with various aspects of water and water management. Examples of these are, to limit the power of Parliament to legislate with respect to military bases, to federal public buildings and to Indian reserves. All of these could obviously be used to deal with some aspects of water manage ment and the quality of water in those areas.

The main power that the federal Parliament could obviously use in this respect would be the legislation governing criminal law, which can be found in section 91.27 of the Constitution Act, 1867. As you know, Parliament can enact any criminal legislation to protect Canadians, in particular, from threats to their health from, in this case, unsafe drinking water.

In fact, the Supreme Court of Canada, in a few recent cases, among others the firearms reference and the RJR-McDonald case, came out with three prerequisites for criminal legislation to be valid. These prerequisites are, essentially: a valid criminal law purpose - and protection of health is one of those purposes - backed by a prohibition and a penalty. These are the three elements that you must find in a criminal statute to be valid.

You must legislate to address a valid criminal purpose, and among those purposes that have been recognized in the past, health is one.

The Chairman: Could I have those three elements again, please?

Mr. De Montigny: Yes. The first one is a valid criminal law purpose, and the jurisprudence of the courts is that the protection of health is one of these. That is one criterion. The two others are that this purpose must be backed by a prohibition and a penalty, or a sanction if you choose. That could take different forms, such as, imprisonment and fines, which are the most current ones, but there could be others.

In the RJR-McDonald case, the federal legislation in question prohibited the advertising and promotion of tobacco products subject to certain exceptions, and also prohibited the sale of a tobacco product unless the package containing that product set forth prescribed health-related information and warnings. For those of you who still smoke, you can see these warnings on each and every cigarette package. The evil targeted by Parliament was the detrimental health effect caused by smoking. Justice La Forest handed this down in 1995.

It confirmed that the protection of health is a valid criminal law purpose, as I just indicated. I will quote again from Justice La Forest because it is quite explicit is relevant to the discussions you will have.

Given the amorphous nature of health as a constitutional matter and the resulting fact that Parliament and the provincial legislatures may both validly legislate in this area, it is important to emphasize once again the plenary nature of the criminal law power.

Health as such, as I explained at the beginning of my introduction, is not allocated specifically to either the federal or provincial legislators. Some aspects of it are found in the various heads of power but health as such you will not find. This is what he means by the "amorphous nature of health as a constitutional matter."

He continues to quote from the Margarine Reference, which is a case dating back to the 1940s, Justice La Forest continued:

Justice Rand made it clear that the protection of "health" is one of the "ordinary ends" served by the criminal law, and that the criminal law power may validly be used to safe guard the public from any "injurious or undesirable effect". The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at the legitimate public health evil.

Here are the three criteria to which I referred previously. These are: a valid criminal purpose, a prohibition, and a penalty. I continue to quote Justice La Forest:

If a given piece of federal legislation contains these features, and if that legislation is not otherwise a"colourable" intrusion upon provincial jurisdiction, then it is valid as criminal law.

The criminal law power would also allow Parliament, in all likelihood, to enact certain measures to prohibit water pollution. As I mentioned earlier, the Supreme Court of Canada in the Hydro-Québec case upheld federal environmental legislation dealing with toxic substances under the criminal law power.

This is probably the most relevant head of jurisdiction for Parliament to deal with problems associated with the quality of drinking water. The other head of power that is of some relevance, although probably more problematic, is what we call the "peace, order and good government power," which is the introduction clause of section 91 of the Constitution Act, 1867.

Under that power, which is essentially residual, three theories have emerged in the jurisprudence to provide a better sense of what is permissible under that residual power. The first theory is the "gap branch," which is not very helpful in our case. According to this theory, the Parliament of Canada could legislate with respect to matters that the Constitution has recognized as classes of subject for distribution of powers purposes, but where the Constitution Act has failed to assign completely this matter to either one level of government.

The best example I could give you in this respect is the incorporation of companies. The Constitution Act, 1867 em powers the provinces to make laws in relation to the incorporation of companies with provincial objects. You would expect to find the equivalent power in section 91 with respect to companies having federal objects. You will not find it. This is where the gap theory is useful because under this residual power the federal Parliament has been empowered to deal with incorporation of federal companies.

In our case, this is not helpful. I do not think this is where you could hook federal statutes dealing with drinking water.

The second theory that has emerged from the POGG power is the "emergency theory," that empowers Parliament to enact laws, which would normally be competent only to the provinces, to deal with emergency situations. The Supreme Court has described this in the anti-inflation reference. An emergency situation is defined as an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the legislatures of the provinces, and thus presenting an emergency that can only be dealt with effectively by Parliament.

This head of power is probably not extremely useful for your discussion. I must recognize that the courts have been quite flexible in the way that they have addressed emergency situations. In most cases, they have deferred to the government in coming to a conclusion with respect to whether there was an emergency or not.

This is probably not relevant in this particular context because the types of legislation that come under this power would need to be limited in time. They would have to be of a temporary character because an emergency cannot last forever. We are dealing with a legislation that needs to be long lasting and for an indeterminate period of time. This is not the head of power at which you should look.

The last theory that has from the "peace, order and good government" power under the Constitution Act, 1867 is the "national concern" or "national dimension" theory. According to this theory, if the subject you are dealing with goes beyond local or provincial concerns or interests, and must from its inherent nature be a concern of Canada as a whole, then it should fall within the confidence of the federal Parliament.

This theory came about in a case having to do with alcohol and temperance. At the time it was felt that this was a national concern. It has been used in other situations since then. It was used to deal with aeronautics. This is a field of jurisdiction that is not allocated specifically in the Constitution Act, 1867, but has been conferred to the federal Parliament under this theory.

The same is true of the National Capital Region, which has been given as a field of jurisdiction to the federal Parliament under this interpretation of the introduction clause of section 91. Marine pollution is another example that has come under this power. The regulation of nuclear plants has also been allocated to federal Parliament under this theory.

This could look attractive for dealing with the problem of drinking water. However, there are strict criteria to apply this power. The main criterion for qualifying as a matter of national concern is that the subject matter with which you are dealing must, according to the Supreme Court, have "a singleness, distinctiveness and indivisibility that clearly distinguishes this subject matter from other matters of provincial concern." That is the first requirement.

The scale of impact on provincial jurisdiction must be reconcilable with the fact that we are living in a federal system. When faced with a piece of legislation presumably adopted under this head of power, the court must be careful that it is not over-encompassing, as inflation was argued to be at the time. It must be something quite precise and distinct, which would not allow federal Parliament to overstep on a host of other provincial jurisdictions in the process.

Another question that the court must address in examining a piece of legislation that is coming under the national dimension theory is whether the provinces by themselves would be capable of dealing effectively with that subject matter if federal Parliament were not stepping in. If the answer is "yes," that will be a major element in the court's reasoning.

A matter will not qualify per se as coming under this national concern theory just because it is desirable to have a uniform piece of legislation across the country or because it makes sense to have the same legislation again all over Canada. That would directly conflict with the fact that we are living in a federal state. If that were the rationale, it would be much easier to have uniform statutes in every aspect of life and we could get rid of the distribution of powers in section 91 and 29. The court would be reluctant to accept that a statute must be under federal jurisdiction just because it would make life easier to have a statute adopted at the federal level.

The two main heads of powers, of course, are the criminal law powers and peace, order and good government under the national dimension theory. There are a few other heads of jurisdiction that could have some impact and could enable federal Parliament in certain circumstances to deal with some aspects of drinking water. I will list them.

There is section 91.12, dealing with jurisdiction of Parliament over seacoast and inland fisheries. There is section 91.10, having to do with navigation and shipping. There is, of course, section 91.29, read in conjunction with 92.11, to which I referred earlier, that gives Parliament jurisdiction over works and undertakings that are not local. The local ones are provincial. Those that are not local but are interprovincial or international will come under federal jurisdiction. Here we can think of international and interprovincial shipping lines and work declared to be for the general advantage of Canada, which is another power that the federal Parliament can use in exceptional circumstances.

There is also section 95, to which I referred earlier, giving both the provinces and federal Parliament jurisdiction over agriculture.

There is also section 91.2, giving Parliament authority to regulate trade and commerce; this would be interprovincial and international trade and commerce, not local or internal provincial commerce. There is also the power to implement treaties, but here one must be careful because there is no allocation of powers, strictly speaking, dealing with the implementation of treaties adopted and ratified by the federal government.

There was a section - section 132 - dealing with treaties adopted by the English Parliament at the time, giving the federal Parliament power to implement these treaties within Canada. Of course, the situation has now changed. The federal authorities adopt all treaties binding on Canada and there is nothing in the Constitution dealing with this. In the labour conventions case in the 1930s, the Supreme Court of Canada decided that with respect to the implementation of the treaties adopted and ratified by Canada, the distribution of powers that is applicable for all other matters would also be applicable to the implementation of these treaties.

In other words, if the subject matter of the treaties falls within provincial jurisdiction, the provinces will need to adopt statutes to implement the treaty.

Finally, there are a few other doctrines I would like to bring to your attention in dealing with the constitutional distribution of powers. One of these doctrines is what we call the "double aspect doctrine." As you may recall, I said that most powers that are allocated under section 91 and 92 are allocated on an exclusivity basis. Except for agriculture and a few others such as pensions, most powers are allocated either to the federal Parliament or to provincial legislators.

That does not mean that both the provinces and federal Parliament cannot legislate with respect to the same matter. Again, using the "aspect doctrine," the courts concluded that in some cases one subject matter can be dealt with from different angles. For example, health can be dealt with from the angle of criminal law, to protect health. Health can also be dealt with through provincial jurisdictions with respect to hospitals or to the regulations of the medical profession.

With a single subject matter it depends how you treat it and approach it. In many cases, even though the jurisdictions that you will find in the Constitution are allocated on an exclusive basis, in practice you will find that many subject matters are dealt with both by the provinces and the federal government.

For example, we have provincial and federal departments of transport, because transport can be local or interprovincial or international. The same is true of a host of other issues and subject matters.

In cases where the two legislations - provincial and federal - are validly adopted because they fall under different heads of jurisdiction, the question that rises is, what happens if there is a conflict between the two? There is nothing explicitly said in the Constitution Act about this, but the decisions of the courts are quite clear and explicit. If there is a conflict, the federal statute will prevail in all circumstances.

The conflict notion has been interpreted quite narrowly. To say that there is a conflict, you must come to the conclusion that it is completely impossible for the citizen to abide by the two statutes at the same time. It is as if on authority tells you "go" and the other tells you to "stop." It is either one or the other; you cannot do both at the same time. This is the only situation where you will face a problem of conflict and then you will be applying the paramountcy doctrine. It is quite narrow in terms of application.

We should also be mindful that the federal government can use its spending power, which is not a power to adopt legislation.

It is not provided for as such in the Constitution Act, 1867, but it is a power inferred and derived from the power to levy taxes to legislate in relation to public property and to appropriate federal funds. Although the courts have never pronounced explicitly on the existence of this power, it is obvious to most constitutional scholars in the country that this is a valid power.

Using this power does not enable the federal Parliament to legislate. It just enables federal government to provide money. Conditions can be attached to the money as long as those conditions are not perceived or interpreted as an indirect way to legislate in a field that is a federal jurisdiction. This nuance must be drawn. Aside from the legislative powers, there is also the power to spend money and attach conditions to the money being allocated to the provinces or to individuals.

The Chairman: Thank you very much. I will turn the floor over now to Mr. Faggiolo.

Mr. Guy Faggiolo, General Counsel, Legal Services, Health Canada: I will support the presentation of Mr. De Montigny.

Senator Kenny: My first question is with respect to who has authority over waters that touch or cross provincial boundaries or touch or cross international boundaries?

Mr. De Montigny: In principle, as soon as the flow of water crosses a boundary, it comes under federal jurisdiction.

Senator Kenny: Sometimes it is a boundary.

Mr. De Montigny: As soon as the water crosses a boundary, it becomes a federal jurisdiction, not for all aspects of it but for most of it.

Senator Kenny: Sometimes the water itself constitutes the boundary?

Mr. De Montigny: Yes, like the Ottawa River.

Senator Kenny: Would that fall under federal authority?

Mr. De Montigny: In most aspects, but it does not mean that because it is federal no provincial statutes apply. Everything must be put into context. These are tough questions to answer in the abstract because it depends on what is at stake and what is the nature and true object, as the courts would qualify it, of the legislation. In general, I think you can say this.

Senator Kenny: You have described at some length what sounds to me to be a patchwork quilt that covers the country. I know you have just given us a summary. My question is this: Will Bill S-18 resolve the patchwork quilt we are seeing? Will legislation like this, be constitutional and will it, by setting standards, make it simpler for people to understand what their water quality will be like?

Mr. De Montigny: I cannot pronounce on the constitutionality of Bill S-18 or any other bill. It is not part of my mandate. I suppose officials of the justice department are not in the habit of giving legal opinions to other bodies than the government. I can say that, in practice, a particular statute could solve a problem. A distinction must be made between the problem to be solved and the constitutional authority to adopt that statute.

That constitutional authority may come from different heads of power, and it is not only true for water, it is true for any other bill that is adopted. Many of the statutes currently on the books take their authority or their constitutional underpinning from various heads of power. The case of drinking water is not an exception. It is not an exception that its validity could presumably come from different heads of jurisdiction.

Having said this, a particular statute - quite apart from how it is justified, constitutionally speaking - could or could not solve a problem depending on the nature and substance of that bill.

Perhaps my colleague can go further in commenting on Bill S-18 as such. I will not, for obvious reasons, go any further.

Mr. Faggiolo: Regarding your question as to whether Bill S-18 would make things simpler by having national standards, it is a matter of policy and you will be hearing from officials later next week. At this point, we should defer to what officials from Health Canada or the Canadian Food Inspection Agency may have to say on that question.

As to whether the bill would be constitutional, it depends, ultimately, on how the courts will view the legislation. If they find valid reasons to enact criminal legislation, then they would find the statute to be valid.

Senator Kenny: The core of my question is this: Are we adding another layer to what is already a hugely complicated and complex system of water regulation, or are we simplifying it with this piece of legislation?

Mr. De Montigny: We are not talking at the same level. The Constitution itself provides for various heads of power under which you can adopt different pieces of legislation, and any legislation will not solve this problem. The Constitution will remain as it is. They are empty boxes that you can fill with different pieces of legislation. Whether this piece or any other piece will make life easier for Canadians or officials or whoever, that is a policy question I am not qualified to answer.

Senator Kenny: I will ask someone else then.

Mr. De Montigny: Maybe health officials next week will be in a better position.

The Chairman: You made a statement that once water crosses a boundary it falls under federal authority. In the West we have rivers across three provinces. Would that mean that a river leaving Alberta and crossing into Saskatchewan, for example, would automatically becomes federal, and Saskatchewan has no title?

Mr. De Montigny: The river as such would then be under federal jurisdiction. It is not at what particular point but the whole flow that would come under federal jurisdiction.

The Chairman: Any water withdrawn from the river, once it crosses a boundary can be under almost exclusively federal regulation, then?

Mr. De Montigny: Exactly. It is like a pipeline. You must distinguish between the powers that the provinces could exercise as the appropriator or owner of the water as they do for lands. Public provincial lands and water on these lands would still be under the property of the provinces. That is one part of the answer. If the province, for example, wanted to sell water flowing in these rivers, it would be under their power to do so, subject, of course, to federal legislation if it is an interprovincial river.

You really must draw a clear distinction between the rights that you can exercise as the owner of the natural resource and the rights that you can exercise as a legislature, the right to enact legislation, which are quite different.

Senator Christensen: I do not have a legal mind, and your presentation was certainly a legal one. Senator Kenny's questions were the kind of questions that most Canadians want to know about. We are looking at a patchwork here. We are dealing with a food that we ingest every day probably more than any other food.

When something goes wrong, instant attention is needed. Having so many jurisdictions to deal with a given situation becomes a problem because you cannot deal with it quickly and you should be able to do so. Any legislation that we deal with should improve any given issue. The sponsor of this bill will be able to speak to it eloquently and has the legal mind behind it to be able to deal with it.

In 1996 and 1997, Bills C-78 and C-14 were put forward but were not pursued. Can you elaborate on why they were not successful?

Mr. De Montigny: I will defer to my colleague on the second half of your question. You are correct in saying that water regulation involves a patchwork of different pieces of legislation, regulations, and so on. However, the same is probably true of most other fields of jurisdiction in the country. Canadians might be surprised to realize just how intertwined and meshed the regulations are regarding transport, environment and health. These matters are all dealt with from different angles under provincial, federal and municipal laws. This is the nature of Canada as a federal country. On an abstract plain, there is nothing in particular with water as opposed to other subject matters that I have mentioned.

Senator Christensen: In the minds of the public, and certainly in the minds of individuals, it is at the core of our very well-being.

Mr. De Montigny: Yes. In some case it works well; in others it does not. There is tightly knit cooperation between the three levels.

Senator Christensen: There are a lot of other things that we cannot equate to this patchwork, but everyone knows what a glass of water is. That it is germane to every human being. It is an important issue and it is one we are trying to address.

Mr. Faggiolo: With regard to Bill C-14 and its predecessor you are right, they were tabled in the House and both died on the Order Paper. Again, this is a question of policy. I will pass your question on to the officials, who will be able to deal with that matter when they appear before us.

Senator Eyton: I was curious with your comment that in your role you felt you could give legal opinions to the government but it seemed to restrain your ability to give an opinion here. As far as I know, we are an important part of the government.

I have not practiced law for a long time, but I would have thought that it is an easy stretch to include water within the ambit you have described under the criminal law powers. If not water, what else? Drinking water is a vital commodity for all of us. I do not have a problem thinking that the jurisdiction reached that far.

I want to pick up on Senator Christensen's comment about the previous bills along the same line that were introduced in 1996 and 1997. Are you aware of any position or attitude of the provincial governments relative to those attempts and, perhaps, this attempt to regulate drinking water under the Food and Drugs Act? Are you aware of any experience in the past or now?

Mr. De Montigny: I will defer to my colleague on the second part of your question.

As to your first comment concerning the criminal law power being relevant in dealing with the kinds of problems you are addressing in this committee, on an abstract level you are probably right, criminal law - at least in the way it has been interpreted in the past - would certainly enable Parliament to deal with a health problem that is perceived to be serious. From a theoretical point of view, that is correct that a priori at least, criminal law power would enable Parliament to deal with such a problem.

That is the legal answer. There is also the policy question, namely, whether this is advisable to do. I cannot comment on that. I will turn to Mr. Faggiolo with the province's attitude about this.

Mr. Faggiolo: The provinces' attitude regarding this bill has not been gauged to my knowledge. We are in contact with provincial officials in respect to many matters at Health Canada. Minister Rock has indicated in the House that the drinking water guidelines were established with the cooperation of the provinces. Again, the question you ask is one that is better answered by officials. As I said with respect to Senator Christensen's question, I will refer your question to Health Canada officials so that they can deal with the matter when they are here next week.

Senator Eyton: My question may have had something to do indirectly with policy but it really concerned the attitude of the provinces opposite the constitutional questions you were talking about. To that degree it is not policy.

Mr. De Montigny: The provinces have many levers, constitu tionally speaking. In practice, the provinces have been the main players in dealing with and regulating the water treatment plants and the quality of water. They may have views about the fact that the federal Parliament will step in and take some of this responsibility itself. As a lawyer, I am not sure I am qualified to pass any judgment on this.

Senator Wiebe: My question relates back to a question posed by Senator Kenny when he asked whether or not this bill addresses the drinking water concerns that Canadians have. Your response was that you could not comment on that because you could only comment to government. I, like Senator Eyton, felt that I was part of government. Furthermore, a senator wrote this bill.

First, where do we go to get the answer? Second, if our understanding of the definition of "government" is wrong, what is your definition of "government"?

Mr. De Montigny: As a practice, the federal Department of Justice has never given legal opinions, because of the solicitor/ client privilege, to any person or body other than the government itself. By "government" I mean the executive branch of the government. In a way I am already breaking with practice today in just coming here and giving you this broad overview. As far as I am aware, this has not been done frequently in the past. That is all I can tell you.

As to whether this bill or any other bill would address the problems that you would want to have addressed, even if I had views on that they would not be legal views. Policy judgments are required here and I am not sure a lawyer is the best-qualified person to answer that. Perhaps the health officials who are coming next week will be in a better position to answer these questions.

As much as I would like to - even if there was no problem in terms of our relationship - I frankly do not think I could comment on this because I do not have the expertise.

Senator Christensen: From a strictly legal and legislative point of view, what is your opinion of Bill S-18? What difficulties do you see with it? Could you tell us how any changes could be accomplished or how that bill will affect other bills? This is strictly from a legislative and legal point of view.

Mr. De Montigny: Frankly, I have not turned my mind to that particular question. I have seen preliminary opinions in the department on this bill. Again, for the reasons I gave you earlier, I cannot share them with you. There has been no extensive review of this bill pertaining to what it would mean in practice, how it could interrelate with other pieces of legislation, or whether it is constitutional or not. I can say some work has been done but not extensively.

Senator Christensen: Of whom do we ask these questions?

Mr. De Montigny: You have your own research assistants. The Library of Parliament staff are qualified to deal with this. These are the people you can turn to.

The Chairman: Something is missing from your examples. As an environment committee, we have come across examples where the federal government appears to have much more control over inland fisheries and streams where fish live. Are you telling me we have control over the kind of water fish drink but not over the kind of water that people drink?

Mr. De Montigny: You are partially right. Parliament has jurisdiction as such on fisheries and everything relating to fisheries, including the quality of water.

There was a case around 1981 that looked at an instance of industrial pollution in a stream of water containing fish which fish were regulated by a federal statute. The federal government was allowed to intervene because of the implications on fish and on the industry.

You may draw conclusions about this, but there is a clear distinction because fishery control is an explicit power in the Constitution, whereas water control as such is not a subject matter described or allocated in the Constitution. That relates back to my earlier comment that both levels of government have levers and powers to deal with various aspects of water depending on which heads of power they are trying to legislate.

The Chairman: That leads to some interesting conclusions that we could make, but I will turn it over to Senator Grafstein.

Senator Grafstein: Thank you for dealing with my bill so expeditiously. Since it was introduced in March, the situation has not improved. Rather, it has become worse in terms of public health and public safety as it emanates from our drinking systems right across the country from one coast to the other. This summer dozens of boiled-water advisories were issued right across the country. There is a clear and present danger to public health.

That was the reason that I became interested in this bill. We heard in our caucuses and in the corridors that a severe, clear and present danger to health exists, to our dismay, in every region of this country and that could lead to disastrous circumstances, particularly in the Aboriginal communities. I know that claim is pretty well anecdotal but it is being supported by independent evidence.

I start with that as a proposition. This obviously brings the federal government's responsibilities to bear under "peace, order and good government" to face this clear and present danger to public health, which exists right across the country although with different causes. If this were a regional problem, we would not be here. That might be helpful to you and your officials as you wend your way through this issue.

I am not finished yet but I have so far read 35 different pieces of federal legislation that regulate water in some manner of speaking. We regulate bottled water, packaged ice, water on buses and trains and in parks. The federal government is indeed involved in the regulation of water.

In addition, I have since discovered that the federal government is directly involved in setting warning standards about public health as it relates to drinking water. In my view, that puts senior officials in Ottawa in a serious position of public responsibility. Once they have responsibility for standards - although not criminal standards - then the public health officials in Ottawa could face personal liability if they have some notice or some information about water in any region of the country and they fail to bring to the attention of citizens. That is a serious problem for public health officials in terms of public responsibility. They cannot simply walk away from that.

Having said that, I will deal with the narrow subject of this particular evidence. In 1996 your department drew a conclusion. We have not seen that opinion. I am sympathetic to Senator Wiebe and other senators in their comments. I understand that your role is to act as a lawyer to the department. You have a solicitor/client relationship with the department, with the govern ment. We in the Senate have a responsibility to determine whether your advice is adequate. We can also seek independent advice. That is the role of Parliament. We must decide on our own whether we think this bill is constitutional, but you must give us some help. I will try to constrain my questions to areas where I think you can give help.

You have already given an opinion on this. You and your department gave an opinion to the Department of Health, or whoever was responsible, for the Drinking Water Material Safety bill to which Senator Christensen referred. You have given evidence that the Drinking Water Material Safety bill, Bill C-16, died on the Order Paper. It was re-introduced in October 1997 but again died on the Order Paper because of an election. Your department already gave an opinion that the proposed Drinking Water Material Safety Act was constitutional. Otherwise, the government could not have introduced the bill; it is a condition precedent.

We do have indirect support for the fact that in the safety of drinking water materials - which is, in fact, the substance of this bill - there is no difference. This is the pith and substance; the formula is the same. You have essentially given an opinion already and you have said it is constitutionally valid. Otherwise Parliament could not have dealt with the previous bill. Is that a fair statement?

Mr. De Montigny: I was not in the department at the time. I am not aware of that opinion.

Senator Grafstein: Do not waste our time. Do not have the department wasting the Senate's time, at a time in this country when Senate time will be very valuable. Please find out from your officials whether they gave an opinion on that bill - and I believe they must have - and tell us whether the pith and substance of that bill was the same as this particular bill.

Mr. De Montigny: I could probably say in all fairness that, if a bill was introduced in Parliament, you are right, the officials would have vetted it from a constitutional point of view.

Senator Grafstein: Not vetted, but an opinion had to be given from your department to the government agency responsible indicating that that bill was valid. It is not a view; it is an opinion.

Mr. De Montigny: Yes.

Senator Grafstein: We do have an internal solicitor-client opinion. I am saying that, in pith and substance, there is no difference between this bill and that bill. When the policy people come here, let them differentiate between the two in terms of pith and substance so we do not waste this time to go on a frolic of our own as to whether it may or may not be constitutional.

Let me give you another narrow question, and you can ask your officials to deal with this. Is water a food, legally?

Mr. De Montigny: Well, it depends on the definition of "food".

Senator Grafstein: Is water a food legally?

Mr. De Montigny: At the moment?

Senator Grafstein: Yes.

Mr. Faggiolo: Senator Grafstein, I think the answer can be found by reading the definition of "food" in the Food and Drugs Act.

Senator Grafstein: That is not my question. I am asking legally, not talking about statute, but legally, common law, because your opinion is based not only on statutory law but common law. Is drinking water a food? I am about to ingest this. Is that a food?

Mr. De Montigny: I do not think there is any legal answer to that question. It depends how you define "food," and the definition could be whatever you want it to be in a statute. I do not think there is one from a strict legal point of view.

Senator Mahovlich: A watermelon is over 90 per cent water. Food is water.

Mr. De Montigny: You could, in a statute, if you wanted to, exclude water from being "food." It is just a question of legal definition.

Senator Grafstein: Could water be included?

Mr. De Montigny: Yes.

Senator Grafstein: That is really my question. There is no barrier to including water as food.

Mr. De Montigny: No.

Senator Grafstein: In fact, we already set standards for this food federally. The only difference between this bill and the federal practice is that I am taking those standards and turning them into quasi-criminal law. This is in no way, shape or form to displace existing provincial legislation. When we talk about dual aspect, there is nothing to prevent the federal government legislating on top of everyone else and setting higher standards.

Mr. De Montigny: Again, it is for the court to decide whether the true nature or the pith and substance of this legislation or Bill S-18 would be health prevention or dealing with health risks.

Senator Grafstein: Let us come at it backwards. If I decided, intentionally, tomorrow to contaminate a water supply in one region, would the criminal aspect apply?

Mr. De Montigny: Certainly the federal Parliament, as I indicated, could deal with prevention and the regulations of drinking water from a criminal point of view.

Senator Grafstein: In fact, the criminal power is based on preventative justice to say, "Do not contaminate water."

Mr. De Montigny: Yes. The only limit I would add to what I have said previously with respect to the criminal law power is that there is a fine line you must be careful not to overstep. Criminal law is basically meant to prohibit and sanction. If you are going too far into regulating as opposed to prohibiting, you may have a problem constitutionally.

Senator Grafstein: Is that not the very essence? At the end of the day, the criminal power is preventative justice, but does the federal government not already do that under the Food and Drugs Act? It takes food and establishes preventative justice by labelling and warning and taking food off the shelves. We already do that, do we not?

Mr. De Montigny: Sure.

The Chairman: Thank you, witnesses, for a most interesting morning. As you mentioned a number of times during your evidence, you will talk to officials. Next Tuesday at 5:30 we will be talking to Health Canada and the Canadian Food Inspection Agency. You are welcome back, because the story gets more interesting as time goes on. Thank you again for appearing.

The committee adjourned.

Energy, the Environment and Natural Resources

Proceedings of the Standing Senate Committee on Energy, the Environment and Natural Resources

Issue 13 - Evidence

Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources