Standing Senate Committee on Energy, the Environment and Natural Resources (44th Parliament, 1st Session)

THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

EVIDENCE

OTTAWA, Tuesday, June 7, 2022

The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9:32 a.m. [ET] to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act

Senator Paul J. Massicotte (Chair) in the chair.

[Translation]

The Chair: My name is Paul Massicotte, I am a senator from Quebec, and I am the chair of the committee.

Today we are conducting a hybrid session of the Standing Senate Committee on Energy, the Environment and Natural Resources. I wish to introduce the members of the committee participating in today’s meeting: Margaret Dawn Anderson from the Northwest Territories; David Arnot from Saskatchewan; Pierre J. Dalphond from Quebec; Rosa Galvez from Quebec; Stan Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Glen Patterson from Nunavut; Judith G. Seidman from Quebec; Karen Sorensen from Alberta; Josée Verner, P.C., from Quebec.

Welcome to all of you, colleagues, as well as to people across Canada who may be watching.

Today we are continuing our clause-by-clause consideration of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

Before we begin, I would like to make members aware of the virtual presence of government officials from two departments, should members have any technical questions to raise as we go through the bill clause by clause. Today we welcome representatives from Environment and Climate Change Canada: John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch; Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. We also welcome, from Health Canada, Greg Carreau, Director General, Safe Environments Directorate.

I would like to explain the process that we will follow during this meeting. If a senator wishes to move an amendment, I ask you to proceed as follows: if it is not too long, first read out the existing wording of the clause you wish to amend. If several members wish to move an amendment to the same clause, only the first senator moving an amendment would read out the clause under debate. Then read out your amendment and briefly explain the reasons for the amendment. That will be followed by questions and debate, which shall be brief, direct, and without repetition, please. Lastly, we will vote. When I ask if a motion is carried, I will ask the members in favour to raise their hand; then I will ask the members opposed to give a show of thumbs down.

Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a vote by show of hands, they may request a roll call vote. That is the most harmonious route to achieve clear results. Senators are aware that any tied vote negates the motion in question.

Before we continue with the clause-by-clause study, I would like to bring this to your attention: we will have two meetings today and I do hope that we can finish the proposed amendments today. Therefore, I ask you to limit your comments to the amendments; the philosophical rhetoric is over, and if it takes too long, I will have to use a little authority so that the debate does not spill over from the proposed amendments.

We will proceed immediately with clause 20 on page 33 of the list of amendments.

There is an early amendment from Senator Patterson. You may proceed.

[English]

Senator Patterson: Mr. Chair, you said I could read an amendment if it was short. This is very short and sweet and elegant.

I move:

That Bill S-5 be amended in clause 20,

(a) on page 13, by deleting lines 25 to 34;

(b) on page 14, by deleting lines 1 to 8.

Colleagues, we heard from Mr. Scott Thurlow, among several other witnesses from industry, on this point of a watch list that this was somewhat redundant. He said that:

. . . I would like to flag the so-called watch list which is being proposed by the ministers. Frankly, I’m not sure why it’s needed other than to defame chemistries that have been through the risk assessment process. If the government wants to send a message to industry about the use of a substance and to warn against it, a Significant New Activity notice accomplishes this task nicely. The government has this power already. If a SNAc —

— that’s the Significant New Activity acronym —

— is created for a substance, industry would need permission from the government before a substance is approved for a new use or at significantly increased volumes. That speaks loudly, I can assure you.

Senators, this is an area that needs closer inspection, including the process for how a substance gets on and off this list. . . .

I know we heard some testimony on Tuesday from Dr. MacDonald from Ecojustice, who told us that:

“Significant new activity notifications,” or “SNANs,” as they’re called, cannot serve the same function as the watch list. SNANs are regulatory instruments issued after assessing a substance. . . .

However, Ms. Laurie-Lean on Tuesday also called this proposed list a “parking lot,” saying that:

If you want to prevent new uses, you use the “significant new activity” restriction and then inform people that it is being placed on the list. But do something. Don’t just place a substance on the list and do nothing.

I further understand from additional research that a SNAN can, in fact, be deployed before a risk assessment, for example, in the approval of a new substance.

Colleagues, in an exchange I had on April 28 with John Moffet, an ADM at Environment and Climate Change Canada, whom we know well, he acknowledged the point I wish to make with this amendment that there is some duplication in the language around this watch list and Schedule 1. Specifically, he said:

That’s an important insight and recognition that there is some overlap in the language. You’re right, the test in CEPA under section 64 includes the concept of “may” or “might.”

I found his answer about the bureaucratically involved process of clarifying why a substance goes on the watch list versus Schedule 1 to be convoluted as well as time and resource intensive. That’s why this amendment and the one coming up later aim to delete all references to the proposed new list of the government.

Now, I know that many members of this committee come from backgrounds of academia or public service where suspicion of the private sector abounds. I recall earlier in our sessions my assertion that, quoting witness testimony, the chemical industry in Canada is world class. As Mr. Masterson said: “We have earned a reputation as the gold standard in chemical management through CMP.” I know that was met with some skepticism, but, colleagues, Canada is lagging in productivity compared to its peers in the industrial world because we put up unnecessary or, in this case, duplicative barriers to efficiency and productivity. Here is a classic example: The bill proposes to create a new procedure, a watch list, when it is actually unnecessary. The SNANs are already there.

Colleagues, I hope this amendment will be seriously considered. I was privileged to travel with this committee to Sarnia. Mr. Chair, you were there. It’s the heartland of Canada’s chemical industry, where we learned of leading-edge innovation and research we can and should be proud of. Let us not endorse the creation of further bureaucratic barriers with unclear justification and threats to productivity in our world-class Canadian chemicals industry. Thank you.

Senator Kutcher: I must admit that when Senator Patterson mentions short, sweet and elegant, I thought for a moment he was speaking about himself. But the government opposes this amendment. I agree with Senator Patterson that some of the testimony we heard has been a bit confusing, and I think we need to clarify that.

The watch list acts like an early warning system that a substance may one day meet the CEPA definition of toxicity. It’s not a regulatory list. It lets chemical users know that they should avoid the substances now where possible, rather than face regulatory restrictions later. It’s an elegant way to get ahead of the toxic guide and avoid regrettable substitutions. A SNAN, or a significant new activity notification, as Senator Patterson has pointed out, is a regulatory instrument. They’re issued after assessing a substance. So they don’t serve the same function as the watch list. They are quite different components here, and so the government opposes this amendment.

The Chair: Can we continue with the vote? It is moved by the Honourable Senator Patterson that Bill S-5 be amended, in clause 20, on pages 13 and 14 by —

Senator Seidman: I would like to ask a question to clarify something.

The Chair: Go ahead.

Senator Seidman: I think Senator Kutcher was talking about how it’s more preventive to have the watch list and it had to do with substitution — the issue of substituting a chemical that is just as dangerous as the one we’re trying to take off the list, so to speak. Obviously, SNANs don’t deal with that. Senator Kutcher, could you explain a little more what you were referring to?

Senator Kutcher: I’ll do my best. Maybe we can ask the official to clarify if my explanation doesn’t meet the threshold you require. The watch list identifies chemicals that might become identified as toxic and tells industry not to use these, so watch out. A SNAN is a regulatory instrument after the assessment has been made.

Senator Galvez: Thank you, Senator Patterson. Initially, in my first evaluation of the watch list, I was with you. But with further understanding of the purpose of the watch list, there were several issues, including the points that Senator Seidman just brought up about the class of several substances that have the potential to be toxic and the potential use of substances in the same class. My concern is that the number of new chemical products that are put in the market — and the officials can comment — is in the thousands. I think that there is a bottleneck issue there that needs to be solved, and the watch list is the mechanism to do that.

I want to point out that just as a substance can be deemed potentially toxic, with time it could also be deemed non-toxic and so liberated for its further use. Unfortunately, I’m going to vote against this amendment because I consider that the watch list has a purpose. Thank you.

The Chair: Are there any other comments before we proceed to a vote?

Senator Patterson: The management of chemicals has been exceeded by no other jurisdiction in the world. Under the Chemicals Management Plan, 23,000 substances already in commerce have been categorized and robust risk assessments of almost 4,000 of the 4,300 highest priorities have been accomplished. So the system is working now. I don’t believe there is a bottleneck. We heard the exact opposite in witness testimony that it is an excellent program and delivering excellent results.

Frankly, Senator Kutcher, your characterization of SNANs as regulatory instruments and the watch list as some different animal baffles me. The watch list will be developed in a bureaucratic process by government. It will require investment of time and productivity by industry, and I think it’s a distinction without a difference. Thank you.

The Chair: Let’s proceed to a vote. It is moved by Senator Patterson that Bill S-5 be amended in clause 20, on page 13, by deleting lines 25 to 34, and on page 14, by deleting lines 1 to 8.

Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in favour, raise your hands; those against, thumbs down. It is so defeated.

As to the next amendment, I notice that Senator Patterson has a proposed amendment, but so does Senator Kutcher, and I think both of you are saying the same thing.

Ms. Cardinal: It’s not the same thing.

The Chair: Can you take 30 seconds and see which one we’ll proceed with?

Senator Kutcher: I will bring forward the government’s amendment to the legislation. Would that be possible, Senator Patterson?

Senator Patterson: I’d like to speak to it, though.

The Chair: Senator Kutcher, are you going to propose the motion?

Senator Kutcher: If it’s okay with Senator Patterson.

The Chair: Senator Patterson said he will speak to it.

Senator Kutcher: I’ll do my best. I move:

That Bill S-5 be amended in clause 20, on page 14,

(a)by adding the following after line 3:

“(3) The Minister shall delete a substance from the List, as well as any information regarding the substance that is specified on the List, if an order is made under subsection 90(1) adding the substance to the list of toxic substances in Schedule 1.”;

(b)by replacing line 4 with the following:

“(4) The Minister shall publish the List and any amend-”;

(c)by replacing line 7 with the following:

“(5) The List is not a statutory instrument as defined in”.

So this allows the government to remove. This is a pathway off the list, and it would just clarify one way that a substance can come off the watch list, by being added to Schedule 1.

Senator Patterson: Mr. Chair, I thank Senator Kutcher for his explanation of the amendment. The key issue for this amendment, which I will support, comes from pages 4 and 5 of the Mining Association of Canada brief. Since we’ve now decided to keep the watch list, this would at least make it work better.

The witnesses outlined that subsection 77(2) lays out options for the ministers following an assessment whether a substance is toxic or capable of becoming toxic. Bill S-5 would create a new list of substances capable of being toxic through a decision. That is one option — paragraph 77(2)(b) under subsection 77(2).

The other options are taking no action — paragraph 77(2)(a) — or adding the substance to Schedule 1, in paragraphs 77(2)(c) and (d): If a substance is added to Schedule 1, the minister must propose preventive or control actions, as described in subsection 77(6)(c), and I see that Senator Kutcher’s amendment would also allow the substance to be deleted, which enriches it.

There was a simplified flow chart from the Mining Association of Canada, which they said:

. . . illustrates the overall process envisaged by Bill S-5, with new provisions highlighted in blue. It is evident that the new list referenced by paragraph 77(2)(b) and created by section 75.1 is not integrated within the overall framework of Part 5 of the Act. This provision would allow for a substance to be placed on the List of substances capable of becoming toxic with no follow-up.

This is where the parking lot argument comes from, which I’ve already lost.

In short, the Mining Association of Canada contends on page 4 of their deck that adding an action plan must be specified when adding a substance to the proposed list of substances capable of becoming toxic — section 75(1) — without constraining discretion on what the action should be — anything from monitoring or research to requiring notification of new activities. Such an addition would integrate the proposed list of substances capable of becoming toxic into the framework of Part 5 and prevent the list from becoming a dead end.

So the key here is the requirement to publish the list, and that is the main reason I support this amendment. Thank you, Mr. Chair.

The Chair: Let’s proceed to a vote on Senator Kutcher’s amendment.

All those in favour of the motion, please raise your hand; thumbs down if you’re against it. Adopted.

I believe Senator Galvez has two amendments.

Senator Galvez: This is a reply to request for assessment and timelines. I move:

That Bill S-5 be amended in clause 20, on page 14,

(a) by replacing lines 14 to 16 with the following:

“Minister shall inform the person who filed the request whether the request is granted or denied and provide the reasons for that decision.”;

(b) by adding the following after line 18:

“(4) An assessment granted under subsection (2) must be

(a) initiated no later than six months after the day on which the person who requested the assessment was informed of the decision; and

(b) completed no later than two years after the day on which it was initiated.”.

As you can see, I’m putting in timelines because without timelines it can go forever. It will constitute a loophole. This is to increase transparency, clarity and effectiveness.

It requires that the minister inform the person who filed the request to assess a substance whether the request was granted or denied and provides the reasons for granting or denying the request.

It’s respect for the people implicated and following what this bill does.

This is a potentially meaningful change introduced to Bill S-5: the replacement of a person’s ability to request a substance to be added to the priority substance list with the ability to request that a substance be assessed to determine if it is toxic.

Senator Kutcher: Thank you, Senator Galvez. The government respectfully opposes this amendment on the grounds that it creates timelines that may be impossible to meet. I suggest that if people want to think about it, fine; otherwise, we will go to a vote.

Senator Galvez: Can I ask Senator Kutcher about the timeline? Is two years too much? Is six months too much? Can he offer what the government would find acceptable as a reasonable timeline that we need to answer this request?

Senator Kutcher: That level of fine detail I did not receive from the government. This is simply noting that the amendment was, in their perspective, providing timelines that may be impossible for them to meet. I’m sorry; I can’t answer that. We can ask the official, if you would like.

John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Good morning. The issue about accountability and requiring the minister to inform the person who filed the request is, of course, an important one, and is consistent with the intention of the bill. But on the concern about completing an assessment, in most cases, two years seems like a reasonable timeline for an assessment, but in some cases assessments can take longer than that, and putting in a timeline could result in one of two consequences that would be undesirable.

The first is that we would have to defer assessments that might be of a higher priority and of more significance for Canadians or their environment, and the second is that we would have to circumscribe the scope of the assessment in order to complete it within two years.

Putting things off indefinitely is not what we desire. I appreciate Senator Galvez’s concern. The challenge that we have with specific timelines, however, is that they’re not always possible to meet. If they’re law, then they might require essentially cutting corners or displacing other priorities.

Senator Patterson: Further to Mr. Moffet’s comments — and thank you for those — do I understand that the government is accepting part (a) of Senator Galvez’s amendment, requiring the person who filed the request to be notified whether that request is granted or denied and provide the reasons? Did I understand that is okay by the government, and it’s part (b), which adds timelines, that is problematic? Is that correct, Mr. Moffet?

Mr. Moffet: Essentially, I think that provision is consistent with 76(2) as it is in the bill, which requires the minister to inform the person of the minister’s intent to deal with it.

The challenge that we have with this specific text, again, is that it’s not just how the minister intends to deal with it but a specific decision about “granting” or “denied.” In some cases, there may be, for example, a need to conduct additional research so that the minister could say, within 90 days, “Good suggestion, we’re going to research this over a specific period of time and get back to you.” That could be one response the ministers would make, as opposed to within 90 days having to say yes or no to conducting an assessment.

So again, the goal of the current text in the bill is to provide accountability but to also provide ministers and the program with the flexibility to respond to the request in the most appropriate way on a case-by-case basis.

The Chair: Senator Galvez, this is your motion. Do you want to proceed to vote?

Senator Galvez: I’m ready to leave it at (a) of my amendment and to let go of Part 4 (a) and (b) because of what Mr. Moffet has explained.

However, I just want to come back to my existential question about who does the assessment. When I asked this last time, they talked about methodology. I didn’t ask what the methodology is; I know what the methodology is. I worked with the U.S. EPA to develop toxicological assessment.

My question was, “Who is running it?” Why are we saying that two years or six years is not enough? Who is running it? Is it the government, a corporation or a private lab? Who is paying for these assessments?

But for the purpose of this amendment, I think for the minister to say they will deal with it is very different than the minister eventually — there’s no timeline — saying if it’s granted or denied. I think it’s a matter of respect, and it’s a matter of accountability, and I’m ready to leave it at (a), the first part of my amendment.

The Chair: I think it’s very clear there’s a subamendment being proposed that Bill S-5 be amended on clause 20 on page 14 to replace the lines 14 to 16 with the following:

Minister shall inform the person who filed the request whether the request is granted or denied and provide the reasons for that decision.

Senator Galvez: Yes.

Senator Seidman: Senator Galvez, if I look at section 76(2) of Bill S-5, it says:

The Ministers shall consider the request and, within 90 days after the day on which the request is filed, the Minister shall inform the person who filed the request of how the Ministers intend to deal with it . . .

Doesn’t this already do what you’re asking to be done? I understand you’ve withdrawn the second part of this amendment, but I’d like to know why it isn’t redundant to put in what you’re asking.

Senator Galvez: Because in my amendment, a final answer is requested — is it denied or is it granted? The way it’s written talks only about how he’s going to deal with it — so it’s the process — but it doesn’t grant an answer. So it’s different.

The Chair: Senator Galvez, you proposed the motion; am I correct in saying you’re now proposing an amendment to your own motion whereby we delete paragraph 4? I want to repeat it to make sure I understand.

Senator Galvez: Yes.

The Chair: Are there any other questions or comments before we proceed to a vote?

Senator Kutcher: I’m not certain that’s what Senator Galvez suggested. Could I ask Senator Galvez to read her amendment as it is currently on the floor? I got a bit confused.

The Chair: She amended her amendment.

Senator Kutcher: Her amended amendment, yes.

Senator Galvez: I will read it. I move:

That Bill S-5 be amended in clause 20, on page 14, (a) by replacing lines 14 to 16 with the following:

Minister shall inform the person who filed the request whether the request is granted or denied and provide the reasons for that decision.

The Chair: Thank you.

We’re dealing with the subamendment as Senator Galvez read out. Raise your hands, those who agree with the subamendment proposed by Senator Galvez. All in favour of the subamendment?

All those against? So approved, with five in favour and four against.

Is it your pleasure, honourable senators, to adopt the motion in amendment as amended? All in favour, raise your hands; all those against, thumbs down. So adopted.

Senators Galvez and Kutcher, both of you are recommending amendments to a similar clause, per se. Could you take a look at it and see whether one of you could remove your proposal, which is basically the same objective?

Senator Galvez: Mine is just to be coherent with the previous amendment that we did. I think it was Senator McCallum who added the “any vulnerable population” language and added the words “or environment.”

The Chair: Senator Kutcher, you recommended the same, I gather.

Senator Kutcher: Yes, the government would support removing “or ecosystem,” and putting in the words “or environment.”

The Chair: Senator Galvez, do you allow that amendment to be proposed?

Senator Galvez: Yes.

The Chair: Senator Kutcher, could you repeat your motion?

Senator Kutcher: It would be a subamendment replacing Senator Galvez’s phrase “or ecosystem” with the phrase “or environment.” So it would read, “on any vulnerable population or environment in relation to.”

The Chair: Is this your amendment that you’re proposing?

Senator Kutcher: No. It’s Senator Galvez’s amendment; I’m subamending it so that it would be consistent with what we did previously.

The Chair: I thought Senator Galvez had agreed to refine her amendment and then you would come forward with an amendment.

Senator Kutcher: No. It was the other way around.

The Chair: Do you want Senator Galvez to make the proposal?

Senator Kutcher: Please.

The Chair: Senator Galvez, the ball is in your court. What do you propose?

Senator Galvez: First, I will read my original amendment, in which I had moved:

That Bill S-5 be amended in clause 20, on page 14, by replacing lines 31 and 32 with the following:

“any vulnerable population or ecosystem in relation to the substance and on the cumulative effects on human health and the environment that may result from expo-”.

From that, we would strike the word “ecosystem.” Up until then, with Senator Kutcher, we are okay.

Then I would add “. . . on human health and the environment that may result from “expo-,” so there is a second line that I added: “. . . on human health and the environment . . .” — again, to be consistent with the changes we have made.

We can concentrate the discussion on the second line that I added, which is, “on human health and the environment.”

Senator Kutcher: The government is okay with that, absolutely.

The Chair: So there is no subamendment? We can move directly to the amendment?

Senator Kutcher: We’re good with the amendment as amended.

The Chair: Are there any comments before we proceed to a vote?

Senator Galvez, the question being asked is that, in English, you referred to any vulnerable population in the environment in relation to the substance, but we have to do it in French.

Would you agree with this wording?

[Translation]

“disponible sur toute population ou sur tout environnement vulnérable relativement à cette substance”?

Do you agree?

Senator Galvez: Yes.

[English]

The Chair: It was moved by the Honourable Senator Galvez that Bill S-5 be amended in clause 20, on page 14, in lines 31 and 32, as follows:

“. . . any vulnerable population or environment in relation to the substance or on the cumulative effects of human health and the environment that may result from expo-”.

Senator Galvez: Yes.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour, raise your hands; those against, thumbs down.

So adopted.

Senator Kutcher, you had an amendment but that’s been overridden, right? We dealt with it?

Senator Kutcher: Yes. My amendment is identical to what we agreed to.

The Chair: Senator Galvez, you had an amendment. You’re also satisfied we’ve dealt with it relative to this article?

Senator Galvez: Yes.

The Chair: Senator Galvez, is there an amendment outstanding on your behalf?

Senator Galvez: Yes. I move:

That Bill S-5 be amended in clause 20, on page 15, by adding the following after line 2:

“(3) Despite anything in this Act, when the Ministers are conducting an assessment under this Part, they may not engage in testing or assessment methods that use vertebrate animals unless

(a) it is not scientifically possible to obtain the required information using testing or assessment methods other than ones that use vertebrate animals; and

(b) the data or information is necessary to achieve objectives related to protecting the environment or human health.”.

As you see, this is an amendment that just keeps the coherence of the suite of amendments on the theme of animal testing and assessment.

Bill S-5 will amend section 76.1 of CEPA 1999, the original bill, which is focused on the “weight of evidence approach and precautionary principle” in the context of assessment under part 5.

My proposed amendment here will create a new section — section 76.1(3) — that states that when conducting assessments under this part, the minister may not engage in testing or assessment methods that use animals unless it is not scientifically possible to obtain the required information using non-animal methods.

As with several of the previous amendments on animal testing, this amendment to this section is aimed at ensuring that toxicity testing on animals is done only as a last resort and that all scientifically valid approaches and methods not involving animals be prioritized in the context of such assessment.

Senator Dalphond: Senator Galvez, do you agree with changing the words in subparagraph (a) “is not scientifically possible” to “is not reasonably possible” to reflect the amendments we had agreed on previously? That will reflect the understanding of the groups we work with.

Senator Galvez: Yes. I agree with replacing the word “scientifically” with “reasonably.”

Senator Miville-Dechêne: I’m puzzled. It seems to me we have seen this particular amendment six or seven times since the beginning. Are we repeating ourselves, because if we say it once — I’ve always learned that the legislator doesn’t talk when he doesn’t have to. Are we in a repetition mode here? Because it seems to me we’ve almost talked more about animals than human beings.

Senator Galvez: I can address that. What happened is this is a new section that was not there at all on animal testing and unnecessary animal testing. Because of that, we have to insert it in many different parts of the bill. Yes, you’re right — and that’s why I was also confused — but in the end, I understood that’s the reason. It’s because the same thing has to be added in several places for coherence.

Senator Kutcher: The government opposes this amendment on the basis that it would introduce a prescriptive requirement impacting the ability to conduct risk assessments in a timely manner and that it’s beyond the scope of the regime of what they can currently do at the current time.

I would ask the officials to speak about this, to clarify the implications of making this change.

Mr. Moffet: Thank you. The main implications are both legal and practical. From a legal perspective, this is very different from the amendments that the senators approved in the early sections of the bill, which provide directionality to the government in terms of the intention to reduce, to the extent possible, reliance on animal testing. These amendments would, in fact, create a legal obligation and prevent animal testing unless certain criteria are met, as described in the provision. The concern is that in some cases it might take time to satisfy that criteria, and from a legal perspective this might open us up to challenges on a case-by-case basis about the approach that was taken to risk assessment.

Whereas the government is fully supportive of the overall direction to reduce, to the extent possible, reliance on animal testing and indeed is investing considerable money domestically and in conjunction with international partners to develop alternative test methodologies, inserting a provision like this, which says “may not engage in testing unless,” would, in our opinion, unnecessarily tie our hands and restrict our ability to do timely risk assessments. Thanks.

Senator Galvez: I understand the nuance. I understand that here we are strengthening, and going for — I don’t think there’s a legal obligation, because it says nothing there — but still, on the legality, can I hear Senator Dalphond’s opinion about the issue of pushing legally — is this really forcing the government to legally —

Senator Dalphond: I’m not sitting here as a judge, you know, and sometimes I regret that. It was much easier, because I guess there’s more order and discipline in the courts.

That being said, I understand the concerns. Maybe here it’s in the weighing of the evidence and we have the principle included in the way we should be moving forward, and here we are more in the process of weighing the evidence. I understand the government’s concern.

Senator Galvez: In that case, I will withdraw my amendment.

The Chair: Is leave granted?

Hon. Senators: Yes.

The Chair: Shall clause 20, as amended, carry? All in favour; those against? Adopted.

Senator Patterson, I believe you have an amendment to clause 21.

Senator Patterson: Yes, thank you, Mr. Chair. I lost the heroic argument about deleting the watch list, and so I will withdraw this and not move this amendment. I hope that’s helpful.

The Chair: Senator Kutcher, you also had an amendment.

Senator Kutcher: Yes, I move:

That Bill S-5 be amended in clause 21, on page 16,

(a)by replacing line 6 with the following:

“(i) is inherently toxic to human beings or non-human organisms, as determined by laboratory or other studies,

(ii) is persistent and bioaccumulative in accordance”;

(b)by replacing line 8 with the following:

“(iii) is present in the environment primarily as a re-”;

(c)by replacing lines 10 to 16 with the following:

“(iv) is not a naturally occurring radionuclide or a naturally occurring inorganic substance;

(b) the substance may constitute a danger in Canada to human life or health and is, in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction; or

(c) the substance is, in accordance with the regulations, a sub-”.

And the rest of section (c) would remain as-is: “-stance that poses the highest risk.”

Senator Sorensen: This is just a reminder because I have a note to myself: We spoke about this when we were discussing Senator Galvez’s motion earlier on. Can you remember that connection? Senator Galvez’s did pass, but I feel there was a connection to this one somehow. I think some of us suggested that Senator Galvez’s motion was somewhat repetitive of this one, but hers did pass.

Senator Kutcher: I think that this motion clarifies that the regime respecting toxic substances will address substances that are carcinogenic, mutagenic or toxic for reproduction.

Senator Sorensen: Thank you.

Senator Galvez: Thank you very much, Senator Kutcher, for updating this section in reflection of the amendment that I proposed and passed. However, I would like to offer a friendly subamendment, which would add, after “carcinogenic, mutagenic or toxic for reproduction,” the wording “or poses other risk of equivalent concern.”

The Chair: What block and what paragraph?

Senator Galvez: Section (b) of Senator Kutcher’s amendment says, “. . . in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction . . .” and add, “or poses other risks of equivalent concern.”

Will you accept that addition?

Senator Kutcher: I would like to make two comments. First, Senator Galvez, this amendment was not created in relation to your previous point; this has been a government amendment from the very beginning. If you recall, I was suggesting it might deal with the amendment that you had.

The highest risk is the equivalent concern. I think we’ve had this discussion already. I don’t see the reason for putting that clause in, and I would not support that, friendly or not friendly.

Senator Seidman: We had this conversation before, as Senator Kutcher says, and we removed “equivalent,” if Senator Galvez will recall. We said, “poses other risk of higher concern.”

Senator Galvez: Yes, you’re right.

Senator Seidman: The wording was “poses other risk of highest concern,” so we removed “equivalent.”

Senator Galvez: Yes.

Senator Seidman: I don’t know if we need to do this here.

Mr. Moffet: Senators, I just wanted to explain that the overall approach to “substances of highest concern” is structured in three parts of the bill. One is in proposed section 67, which you’ve already dealt with, and that is the regulation-making power to define what is a “substance of highest concern.” We have now made it clear that it must include carcinogenic, mutagenic and substances that propose reproductive risk.

Then we have proposed section 77 that we’re now dealing with, which is the obligation to put any substance that meets those criteria on the new Part 1 of the list of toxic substances. Then we’ll get to proposed section 90, which says that, for substances in Part 1, there is a priority given to prohibition.

The point I’m making is that there are three parts, they are all related and we should be consistent among the three parts. In addition to any specific criteria such as carcinogenic or mutagenic, the key generic phrase used in the bill is “substances of highest concern.” That is the phrase that is used throughout the bill, and that is the term, therefore, that we need to rely upon to be able to make regulations to define other criteria, to identify which substances must be added to Part 1 and to identify those substances for which priority must be given to prohibition.

I’m suggesting that we rely on the same phrase, which is “substances of highest risk.”

The Chair: Senator Kutcher, this was your motion and amendment. Now Senator Galvez is proposing an amendment to it, but we don’t have the French copy and we don’t have the final wording.

Senator Kutcher: No. The government doesn’t support the subamendment that Senator Galvez is presenting on the grounds that it’s already covered under “substances of highest risk.”

Senator Galvez: Okay. I will withdraw my subamendment.

The Chair: Let’s deal with the amendment by Senator Kutcher. It is moved by the Honourable Senator Kutcher:

That Bill S-5 be amended in clause 21, on page 16,

(a)by replacing line 6 with the following:

“(i) is inherently toxic to human beings or non-human organisms, as determined by laboratory or other studies,

(ii) is persistent and bioaccumulative in accordance”;

(b)by replacing line 8 with the following:

“(iii) is present in the environment primarily as a re-”;

(c)by replacing lines 10 to 16 with the following:

“(iv) is not a naturally occurring radionuclide or a naturally occurring inorganic substance;

(b) the substance may constitute a danger in Canada to human life or health and is, in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction; or

(c) the substance is, in accordance with the regulations, a sub-”.

Is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour? Those against? So adopted.

There is also another motion by Senator Galvez. My understanding is that if Senator Kutcher’s earlier amendment was accepted, we would let this one die. Is that the case?

Senator Galvez: Yes.

The Chair: We also have two other amendments. We also have S5-21-16-20.

Senator Galvez: Is that mine?

The Chair: I think so.

Senator Galvez: This concerns the timeline. It’s my understanding that because my previous one on timelines didn’t pass, I do not think this one is relevant anymore.

The Chair: With leave, will you withdraw it?

Senator Galvez: Yes.

The Chair: Senator Galvez, you also have two other amendments. Do you wish to withdraw them also?

Senator Galvez: Yes, because the arguments will be the same.

The Chair: Shall clause 21, as amended, carry? Is anyone against? So adopted.

Is clause 22 carried? All in favour? Carried.

Shall clause 23 carry? Carried.

Shall clause 24 carry? Carried.

Shall clause 25 carry? Carried.

Shall clause 26 carry? Carried.

Shall clause 27 carry? Carried.

Shall clause 28 carry? Carried.

Senator Kutcher has something for clause 29.

Senator Kutcher: I move:

That Bill S-5 be amended in clause 29, on page 21,

(a)by replacing lines 15 to 17 with the following:

“Schedule 1, the Ministers shall give priority to pollution prevention actions and, in particular, in the case of a substance specified in Part 1 of the list of toxic substances in that Schedule, to the total, par-”;

(b)by replacing lines 20 to 26 with the following:

“the environment.

(1.2) For the purposes of subsection (1.1), the Ministers shall, in respect of a substance specified in Part 1 of the list of toxic substances in Schedule 1, consider whether the activity or release can be un-”.

This amendment clarifies that, with respect to risk management, priority is to be given to toxic substances. The ministers must give general priority to pollution prevention actions for all toxic substance in Schedule 1. In selecting from among those actions for toxic substances specified in Part 1 of Schedule 1, they must give special priority to the prohibition of activities or releases of those substances.

The Chair: Is it your pleasure, honourable senators, to adopt the motion, in amendment? So carried.

Shall clause 29, as amended, carry?

Some Hon. Senators: Agreed.

The Chair: Shall clauses 30 to 38 carry?

Some Hon. Senators: Agreed.

The Chair: Shall clause 39 carry?

Senator Patterson: I have an amendment, chair. I move:

That Bill S-5 be amended on page 28 by adding the following after line 14:

“39.1 (1) Subsection 106(1) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:

(a.1) where the living organism is an animal having a wild counterpart, the information provided shows a demonstrable need for the living organism and that the living organism is not toxic or capable of becoming toxic; and

(2) Subsection 106(4) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:

(a.1) where the living organism is an animal having a wild counterpart, the information provided shows a demonstrable need for the significant new activity involving the living organism and that the significant new activity does not render the living organism toxic or capable of becoming toxic; and

(3) Section 106 of the Act is amended by adding the following after subsection (8):

(8.1) Despite subsection (8), if the living organism is an animal having a wild counterpart, the Ministers must provide

(a) a public notice of the request for a waiver; and

(b) opportunities for members of the public to participate in the assessment.”.

Senator Kutcher and his team have my amendment and have pored over it, and I’m sure have comments on it.

I would just like to remind my colleagues that this amendment is based on the testimony of Nature Canada, pages 2 and 3 of their brief and their presentation. I don’t know about my colleagues, but I was horrified to hear the story of a genetically engineered Atlantic salmon species being developed on a farm on Prince Edward Island without anyone really being aware of it — no one in the fisheries community. This was allowed to happen completely under the radar of an iconic fish species in Canada. Mark Butler, a senior advisor with Nature Canada, spoke of the risk to wild salmon and the implications for Indigenous peoples’ rights that such a species could have.

That is why I brought forward, with the assistance of the Law Clerk, the exact language from their brief with some stylistic changes recommended by the Law Clerk’s office that would seek to reverse the burden of proof so that, as stated in their brief:

Until a proponent can demonstrate that a living organism that has a wild counterpart can be used safely, its development, manufacture, import or use is prohibited.

So the burden of proof with this amendment would be on the proponent to demonstrate that a counterpart to a living organism can be safely developed, manufactured, imported or used. Nature Canada’s brief goes on to say that:

(Similar recommendations have been made for chemical substances of very high concern.) The proponent should also have to demonstrate that the new living organism is needed.

Senator Kutcher: Thank you to Senator Patterson for raising this really important issue and to Nature Canada for their thoughtful testimony. This is very important. That being said, the government must oppose the motion as it falls beyond the scope of this bill. Additionally, I’ve learned that Environment and Climate Change Canada and Health Canada have now initiated a comprehensive review of the New Substances Notification Regulations (Organisms), which are a part of the regulations that implement part 6 of CEPA. As such, changes to those regulations will be examined closely during part of this review, and it would thus be premature to propose amendments to this part of the act before those consultations and subsequent regulatory modernization initiatives have run their course. I would like to ask the officials if they would also like to comment on this particular issue as well.

Mr. Moffet: Thank you, senators. I’ll just give general commentary, and if there are questions about the nature of the review, I’ll defer to my colleague Ms. Gonçalves, and Mr. Carreau from Health Canada.

The general point is the one that Senator Kutcher made, and that is that there is an overall approach in the act and regulations together to the assessment and management of living organisms. The government has committed to and, indeed, has now initiated a review of that regime. It’s our perspective that there is a need for an overall review of the public discussion of the overall approach to assessing and managing living organisms. This amendment would inject one particular rule without the benefit of articulating an overall approach to the management of living organisms. So while the government is not saying that something like this ultimately may or may not be part of the regime, it would be more appropriate to have a look at the entire regime, have a public discussion about that and then come forward with proposals that may be focused only on the regulations or may include regulations and legislative changes. In short, it’s an important issue but premature to address it selectively in this manner.

Senator Miville-Dechêne: I have a question about the scope. You’re saying this is out of scope, and I understand you think it is because we’re talking about living organisms instead of chemical substances. But Part 6 of CEPA talks about animate products of biotechnology. Would the matter of genetically modified organisms fall under biotechnology so that it could be in scope?

Senator Kutcher: No. It’s out of scope of Bill S-5.

Senator Miville-Dechêne: But not of CEPA.

Senator Kutcher: No, but we’re not amending all of CEPA. We’re dealing with Bill S-5.

Senator Galvez: I would like to stress, repeat and agree with Senator Patterson’s motivations to draw up this amendment. It is extremely important that we figure out how these engineered living organisms are impacting the natural world. It is extremely important.

I also agree with Senator Miville-Dechêne that this shouldn’t be out of scope because we are amending CEPA. The minister, when he came to talk to us, even spoke about plastic and he said to Senator Carignan to amend it. Also, we have changed, through many of the amendments, some sections that are not necessarily amended by the government.

My third point is that last week there was a list of things that could be added as potential sources of pollution. There were three amendments by Senator McCallum, and I wonder if it is there that we can add this, because this is not an activity that can produce a release of toxicity. There was another opportunity to add this extremely important issue.

I understand the concerns of the officials, and they are promising that this will be part of a new consultation, but this has been happening now for almost 15 years. We don’t know when this is coming, and we should put it in an amendment with a list of potential toxic substances or make an observation if this amendment doesn’t pass, but I am in favour of this amendment.

Senator Kutcher: Thank you, Senator Galvez, for your input here. I agree that something like this would be a good observation to make to this bill.

Just to reiterate, my understanding is that Bill S-5 does not open Part 6 of CEPA. We’re dealing with Bill S-5, and there are other mechanisms under CEPA that will be coming forward.

The Chair: I think we should vote on the proposed amendment, and if there is a debate about whether it’s beyond our scope, I will delay to a later time. At this point in time, let us vote on the proposed amendment.

Senator Dalphond: Just to remark on that point of order that you’re making, Mr. Chair, I understand the point is that it’s beyond the scope of the bill, but I understand that we’re dealing with Part 6 of CEPA, and that deals with sections 104 to 115, and the bill does amend many of the provisions that are found in Part 6. I’m just wondering if we are out of scope or not. I’m not answering the question, but I’m wondering, because Part 6 is amended by the bill.

Senator Patterson: We’ve had a previous discussion about whether an amendment of mine was within scope. I was not satisfied with the way it was dealt with in the committee, though I know it has been dealt with. It seems to me that the proper procedure, if an amendment is questioned as to whether it’s within scope, is to get advice from the independent Law Clerk or the clerk of the committee. Because, as I said in the previous debate about whether an amendment was in scope, this amendment was developed by the Law Clerk, and that means that the law clerk did not consider the amendment out of scope.

I think before we decide whether it’s in scope or not, we listen to the legal experts, with all respect; not to the officials of the department but to the legislative advisers who are available independently to advise this committee. I will respect their view. But as I said, I took great pains to make sure that my amendments were screened by the Law Clerk, including screening as to whether the amendments were in the scope of the bill.

The Chair: I have a tendency to let this go to a vote, as if it is acceptable. If you wish, I can consult with the legal counsel to my satisfaction. What are your preferences?

Senator Sorensen: I would like more advice.

The Chair: If that’s the case, we will stand on that amendment and proceed.

Senator Kutcher: Are you encouraging us to move forward and vote on this amendment?

The Chair: No, I would stand this amendment completely and get advice before you vote on it.

Senator Kutcher: My understanding was that you were suggesting we go to a vote, because you thought that it was within reason that we could vote on it. If that was the case, then my suggestion is we should vote on it.

The Chair: I appreciate that. I’m getting all kinds of advice, some of it contradictory. Does anyone else object to proceeding to a vote? Senator Patterson has expressed his views.

Senator McCallum: I do. I think we need to hear from the Law Clerk and other people, and we should stand this to make everyone comfortable. There is no reason to proceed to a fast vote.

The Chair: I’m just being told that it is not the role of the Law Clerk to give such advice. We will not get advice from the Law Clerk, even though they give us advice personally. They’re not going to express an opinion. Therefore, it always comes back to me as the chair. If you follow that logic, I propose we vote on this amendment and we proceed.

Senator Patterson: Point of order: Are you making a ruling on whether the amendment is in scope?

The Chair: You’re the only person who objected, and I have no reason to counter your opinion. Therefore, I’m going to proceed as if everything is in order, and we’ll vote on the amendment.

Senator Patterson: Could I speak to the amendment one more time?

The Chair: If you do it quickly, go ahead.

Senator Patterson: Colleagues, I heard Mr. Moffet say that there is a concern about assessing the potential of dangers from living organisms and that there is a need for a review. I heard Senator Kutcher say this is very important, but we’ve been asked to wait for public consultations and for what Mr. Moffet called an “overall review.”

Colleagues, there is a genetically engineered species of Atlantic salmon in a fish farm on land in Prince Edward Island right now. This is urgent. If we were talking about a genetically engineered species of Pacific salmon, which may be next on the West Coast, where Pacific salmon is also an iconic species, there would be a public outcry and a desire to move on it.

I don’t think we can wait on this. Yes, it’s a specific issue relating to genetically modified living organisms, which already exist in our ecosystems, and maybe there are other categories that can be added following a public review, but I think this is an urgent matter. Everyone I’ve spoken to who has been unaware of this existence of this threat to the Atlantic salmon wants to see something done about it.

I would urge my colleagues to be bold and send a signal to the public and to the government that we think this issue is urgent and that we cannot wait for a review of uncertain time to particularize this problem. This amendment deals with the problem, and I think we should act now because of its urgency. Thank you.

The Chair: Thank you.

It is moved by the Honourable Senator Patterson:

That Bill S-5 be amended on page 28 by adding the following after line 14:

“39.1 (1) Subsection 106(1) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:

(2) Subsection 106(4) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:

(3) Section 106 of the Act is amended by adding the following after subsection (8):

(8.1) Despite subsection (8), if the living organism is an animal having a wild counterpart, the Ministers must provide

(a) a public notice of the request for a waiver; and

(b) opportunities for members of the public to participate in the assessment.”.

Is it your pleasure, honourable senators, to adopt the motion in amendment? So carried.

Ms. Cardinal: It was recommended that we proceed with Senator Patterson’s amendment, because he’s amending section 108(1), and Senator Galvez’s amends section 108(2) of CEPA. So it made more sense that way. That’s what was recommended to me.

Senator Patterson: Thank you, Mr. Chair. I move:

That Bill S-5 be amended on page 28 by adding the following before line 15:

“39.2 Subsection 108(1) of the Act is replaced by the following:

108 (1) Subject to subsection (4), the Ministers shall, within the prescribed assessment period, assess information provided under subsection 106(1), (3) or (4) or paragraph 109(1)(c) or otherwise available to them in respect of a living organism in order to determine whether

(a) it is toxic or capable of becoming toxic; and

(b) it shows a demonstrable need for the living organism.

(1.1) The Ministers shall ensure that the public is provided with an opportunity to participate meaningfully in the Ministers’ assessment.

(1.2) The Ministers shall, within the prescribed assessment period, solicit public comments in respect of the testing of all evidence and may request additional evidence from any individual.”.

Colleagues, I thank you for your support for the amendment we just approved. This amendment also connects to the brief from Nature Canada. The amendment seeks to set up clear timelines for the consideration of applications for new living organisms and enshrines in law a transparent process that includes public participation at every step along the way.

The evidence was clear that there was no public awareness or participation in the process that allowed the approval of the genetically modified Atlantic salmon project in Prince Edward Island. This amendment will follow on the earlier one and invite public participation in the process. Thank you.

The Chair: Are there any questions or comments from our colleagues?

[Translation]

Senator Dalphond: I’d like a clarification.

[English]

Maybe, Senator Patterson, you can confirm. My reading of your proposed amendment is to add, in the first paragraph of section 108, a new subparagraph that says, “. . . it shows a demonstrable need for the living organism.” The rest is already there, so you’re just adding this line and a half. And then, as a consequence, you’re adding (1.1) and (1.2), on public consultation?

Senator Patterson: Correct.

Senator Dalphond: Thank you.

Senator Galvez: I think that in Senator Patterson’s amendment, which I support, there is “an opportunity.” Can we change that to the plural, “opportunities”? Because there should be more than just putting it in a website and waiting for people to react. Can we pluralize that to “opportunities”? This is my proposed amended wording of subsection (1.1) in Senator Patterson’s amendment: “The Ministers shall ensure that the public is provided with opportunities to participate meaningfully in the Ministers’ assessment.”

Senator Patterson: Mr. Chair, I would welcome that change to my amendment.

Senator Miville-Dechêne: I don’t think we have to change the French version. Senator Galvez, I think the French version is wider than the English version in that case. What do you think?

Senator Galvez: I don’t have the French.

[Translation]

Senator Miville-Dechêne: In French, and I quote:

“Les ministres veillent à ce que le public ait des possibilités de participer [...]”

The word “possibilité” is broader in scope than the word “opportunité”. So I think the French version is correct.

[English]

Senator Galvez: Yes, okay.

The Chair: Do you have comments or questions on the amendment?

Senator Miville-Dechêne: We could put “possibilities” in English too.

The Chair: I think what you had was pretty good. Who is proposing the amendment? Senator Galvez?

Senator Galvez: I think the translation between “opportunities” and “possibilities” would be acceptable.

The Chair: I agree. The amendment is minor, so I think we have the freedom to amend it.

Does the subamendment carry? All in favour, raise your hand. Anybody against? So carried.

Is it your pleasure, honourable senators, to adopt the motion in amendment, as amended?

Some Hon. Senators: Agreed.

The Chair: Shall clause 39 carry?

Some Hon. Senators: Agreed.

The Chair: Shall clause 39.1 carry?

Some Hon. Senators: Agreed.

The Chair: Shall clause 39.2 carry? All in favour?

Some Hon. Senators: Agreed.

The Chair: Shall clauses 40 through 43 carry?

Some Hon. Senators: Agreed.

The Chair: In clause 44, we have an amendment by Senator Patterson.

Senator Patterson: Thank you, Mr. Chair. I move:

That Bill S-5 be amended on page 31 by adding the following after line 18:

“44.1 Subsection 114(1) of the Act is amended by adding the following after paragraph (g):

(g.1) prescribing processes for meaningful public participation in

(i) an assessment under section 108, and

(ii) the determination of whether to grant a waiver requested under subsection 106(8);”.

This amendment was also included in Nature Canada’s brief. It would create the legislative authority for the government to create regulations that further allow for public participation in various processes under this act. It’s not prescriptive but gives the government the authority to make regulations if it decides to do so.

In the testimony of and in my discussion with Hugh Benevides, Legislative Advisor for Nature Canada, he was quite clear, as they are in their brief, that this legislative authority is required before we can regulate the processes that will result in meaningful public participation as contemplated in my previous amendment. So it’s consequential on the previous amendment, in my view, Mr. Chair, and I would appreciate your support, colleagues. Thank you.

Senator Seidman: This falls under regulations. I guess it’s not legislative, as you are requesting, but, generally speaking, under regulations, there is a period of consultation and publication in Canada Gazette Part I and Part II. I’m just wondering about this.

Senator Patterson: This is not about public participation in the regulatory process in the making of regulations and the gazetting of regulations. This is about allowing for public participation in the processes relating to dealing with modifications that affect existing living organisms. It’s not about the regulatory process; it’s about participating in the public process in the decision-making process that leads to approval of these new biogenetic substances.

We learned from testimony that there had been no public participation in the evaluation of genetically modified form of salmon and no opportunity for public participation. So this is consequential on my earlier amendment and simply gives the authority to allow meaningful public participation, as we already agreed should happen with the previous amendment, when these decisions are being made by government.

Senator Dalphond: I don’t mean to answer the question of Senator Seidman, which was not necessarily that question, but section 114 begins with: “The Governor in Council may, on the recommendation of the Ministers, make regulations,” followed by a list of topics, and those would be additional topics, and those would be subject to the regulatory power that requires advance notice, publication in the Gazette, consultation and adoption.

It would be added to the list of topics that can be covered through the regulatory process.

Senator Seidman: That’s helpful. Thank you.

The Chair: That being the case, is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour, raise your hand; anybody against, thumbs down. Motion carried.

Shall clause 44 carry? Agreed.

Shall clause 44.1 carry? Agreed.

Shall clauses 45 to 48 carry? Agreed.

Shall clause 49 carry? Agreed.

Shall clause 50 carry? Agreed.

Senator Miville-Dechêne: I move:

That Bill S-5 be amended in clause 50, on page 35, by replacing lines 10 to 13 with the following:

“(3) The Minister shall not take any other action under this Act in respect of any matter subject to a request for confidentiality — and shall not disclose any information subject to that request — until the Minister has

(a) decided either to grant or refuse the request; and

(b) communicated that decision to the requester.

(4) The Minister shall not grant a request for confidentiality unless the Minister is satisfied that the person making the request has demonstrated that the information with respect to the request is confidential.”.

This is the main amendment. You will notice that there are four correlative amendments that follow. They are only to add the words “was granted,” because the confidentiality exclusion should not only be asked for but should be granted. The idea of those correlative amendments is to add — do you want me to read them? I will explain the amendment.

First of all, I want to say that in the proposed section 313, the government is strengthening — and I want to applaud that — the clause to try to make the demand for confidentiality more difficult in the sense that it has to be with reasons. So this is part of the good changes that the government has made, and I want to insist on it. Before, we had a system that made no sense, where there was some kind of form. The company just had to check, and they didn’t really have to justify as much.

So, first, the proposed section 313 is an improvement. I want to improve upon this improvement, to be frank. We’d like to do that, because it’s not only important to request confidentiality; it’s important that the minister answers, and either grants or refuses the request, which is not in the bill right now.

I’m going to give you the reason for that. These amendments formalize the decision-making process by requiring the minister to grant or deny the request, and communicate this decision. It places the onus on the requester to demonstrate the confidential nature of the information, and it removes the broad exception provided for in the old section.

If you want us to go and see the old section — because this is quite important — it is on page 35. Proposed subsection 313(3), the old exception was extremely broad. It says:

In the case of information provided under a regulation, order or notice, reasons for a request for confidentiality are not required if the regulation, order or notice so specifies.

This is what I asked the minister when he came to testify: What does that mean? What are we talking about? Why do you want to make exceptions? The minister referred me to his people and to be frank, over the last two weeks, we’ve tried to see if there was a way to make a new clause for exceptions that was not as broad as this one. This one is like a giant loophole. This exception for requirement to confidentiality is too broad. It’s a loophole, so we have changed this particular subsection 3 for the one I read to you.

I think, as drafted, the decision-making process was vague and potentially allowed the minister to take no action in respect of the request. That’s why we’re asking him to answer and to justify his answer. The burden of proof with this new writing will definitely be on the company — on the enterprise. They will have to prove why they want confidentiality.

Obviously, you understand that my particular interest is that I believe in transparency and accountability. Without transparency, we don’t have accountability.

The Chair: Thank you very much.

Just to clarify, I understand Senator Galvez has agreed with Senator Miville-Dechêne that she will not move her amendments and that Senator Miville-Dechêne represents both interests. Is that correct?

Ms. Cardinal: I think we can ask Senator Galvez.

Senator Galvez: Yes, thank you. Absolutely I support the amendment of Senator Miville-Dechêne. Right now, as it stands, a request for confidentiality does not require approval from the minister. We need more transparency. The main proposed amendment of Senator Miville-Dechêne requires the minister to grant or deny a request for confidentiality and to communicate the decision to the requester. It clarifies that confidentiality should be granted by the minister only once he or she is satisfied that the requester has demonstrated the need for confidentiality. It also clarifies that the minister cannot deny confidentiality if granted by other acts or elsewhere in Canadian law, so this is very important too.

As it stands, confidentiality is automatically granted. For better transparency, the request should demonstrate why confidentiality is needed, and the responsibility should fall on the minister to grant or deny.

As I mentioned, in real life, firefighters and many other safety and security people are in the dark and are effectively working blind because they don’t know the composition of the substances that they are dealing with. Therefore, it’s important that transparency is there in order to protect the workers, the citizens and the environment. Thank you.

And yes, Senator Miville-Dechêne and I have agreed that our amendments are very similar, so hers can be presented in place of mine.

Senator Kutcher: First, let me applaud Senator Miville-Dechêne for her efforts to improve the improvements.

The government wishes to oppose the amendment and to make us aware that this act must abide by the rules of the Access to Information Act. I would like the government officials to weigh in on this issue, please.

Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: I think we all know that the reason there’s protection for confidential businesses in business information is to not jeopardize competitive positions or trade secrets, while the rules around disclosure of that confidential business information are meant, then, to balance other very important public interests, which this act protects, including environment and human health.

It’s perhaps useful for you to know that, under the act, there are two regimes for dealing with confidential business information. They are constructed differently, depending on whether the information is going to be published and disclosed or not. The one that follows section 46 of the act — which is the minister’s general power to gather information and do research for the purposes of, for example, inventories or formulating objectives or codes of practice — requires the reasons up front and requires a determination. First of all, the notice that goes out to collect that information tells people whether it’s going to be disclosed or not and then requires information to justify that people give the information and the reasons for confidential information. There is then a whole process for the minister to reply — it gives a chance for reply — and then, ultimately, judicial review if the person doesn’t agree.

The process in section 313 is meant to deal with, in fact, a large amount of information that comes into the department that is not intended to be disclosed, at least not right at that moment. The amendment in Bill S-5 that the government had originally proposed was saying, “At least when you give us that information, tell us why you’re claiming confidentiality.” The department gets that and does due diligence and makes sure that it makes sense. Then it’s at the time of disclosure that the department really looks into that and makes sure that, if there are grounds for disclosure, that information is the information that’s being relied on for a certain risk assessment. Then it figures out how to disclose it.

So the issue with these amendments is that they require the government to make a very formal decision even when the information is not going to be disclosed. It adds an administrative burden where it is not necessary.

As for the exception, I just want to explain subsection (3) on exceptions to requirement to give reasons, which would allow, basically, that you wouldn’t have to give reasons if it’s so specified in a regulation. I would say this sort of goes back to the understanding of CEPA as an enabling act, allowing for some flexibility depending on specific circumstances. There could be circumstances where, in a regulation, you know what you’re asking for is confidential business information, and so you don’t need people to provide the reasons for it. However, the minister — the government — still has the authority to disclose that if the reasons for disclosure exist. So that’s why it’s there.

The Chair: Thank you very much.

Senator Miville-Dechêne: I can answer the concern of Senator Kutcher on the Access to Information Act by looking at one of my other amendments, which proposes:

That Bill S-5 be amended on page 35 by adding the following after line 34:

“52.1 Subsection 317(1) of the Act is replaced by the following:

317 (1) The Minister may disclose information in respect of which a request for confidentiality has been granted under section 313 where the Minister determines that the disclosure would not be prohibited under section 20 of the Access to Information Act.”.

So here, you have the reinforcement that there will be no disclosure if it is opposed to the rules in the Access to Information Act that will violate the law, in essence.

Senator Seidman: These were my questions around the Access to Information Act and the Privacy Act.

The Chair: Shall we proceed to a vote on the motion? No?

Senator Dalphond: I have questions for Senator Miville-Dechêne or for the officials.

Section 313(1) reads, “A person who provides information to the Minister under this Act, or to a board of review . . . .”

So “confidentiality” is dealing with the ministers and with the board of review. I understand the amendment will be dealing only with the ministers, not with the board of review.

The way I read the proposed amendments at subsections 2 and 3 of the bill, it will apply to both the minister and the review board. I wonder if something is missing here. I’m afraid that the proposed amendment is now worded based on what the bill is proposing.

My second question is: The minister shall not take any other action under this act until the matter of confidentiality has been dealt with. Isn’t that very constraining for the minister if there’s an urgency to act or something to do? It’s a question. I just want to understand.

The Chair: Senator, did you want to ask the government officials?

Senator Miville-Dechêne: I think Senator Dalphond has asked if it was too constraining, and that question was to the officials. Obviously, I’m not going to say “yes.”

Senator Dalphond: What is proposed is that the minister shall not take any other action under this act in respect of any matter, subject to a request until the minister has. Does that mean that it could be very constraining and possibly prevent emergency orders being made?

Ms. Farquharson: I think that is the implication. It requires a determination every single time before anything else can happen.

The Chair: Thank you very much. Shall we proceed to a vote?

Senator McCallum: Ms. Farquharson, when Senator Galvez brought up the firefighters that are kept in the dark about the materials that they’re working with, are you saying that if there is nondisclosure through patents that this would — are there toxic substances that have not been disclosed because of confidentiality?

Senator Miville-Dechêne: In light of what the officials have said, I would like to present a subamendment, but maybe we’re out of time.

Senator Galvez: Chair, point of order. We have a question from Senator McCallum, which is very important to understand the whole issue.

I’m sorry, I feel very rushed.

Senator McCallum: My question was to Ms. Farquharson.

Senator Galvez: I feel very rushed, and, to my knowledge, there is no allocation of time under this bill. Could we please take the time to understand everything? Thank you.

The Chair: What I am proposing is we stand on this issue. We’re running out of time. We will deal with it tonight at our next meeting. Everyone is here, and they have the time and patience to listen to the arguments.

Mr. Moffet: Mr. Chair, if it’s appropriate, we can start with a comprehensive answer to Senator McCallum’s question.

(The committee adjourned.)