SUBMISSIONS TO THE HOUSE OF COMMONS STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT ON BILL S-5, AN ACT

CELA also intervened before the Supreme Court of Canada in the Hydro-Quebec case, which saw the Court uphold in 1997 the constitutionality of CEPA as a valid exercise of the criminal law power12 and paved the way for the Act’s subsequent amendment in the late 1990s. [...] Subsequent decisions of the Supreme Court of Canada in considering Hydro- Quebec in the context of other federal legislation seeking to shelter under the authority of the criminal law power have continued to underscore the need for such legislation to have a valid criminal law purpose; i.e., address an “evil” in order to be constitutionally valid. [...] In the 2010 decision of the Court in Reference re Assisted Human Reproduction Act, the majority noted that in Hydro-Quebec the Court held that the Parliament of Canada had the power to address “the entry into the environment of certain toxic substances”.31 Similarly, in the 2020 Supreme Court of Canada judgment in Reference re Genetic Non- Discrimination Act both the majority and minority opinions. [...] Pollution abatement appears consistent with a long-held view of the chemical industry that many of the substances on the current Schedule 1 are not “toxic” in the traditional sense, and therefore should not be stigmatized and subjected to the most rigorous of measures available under the Act. [...] This judicial review application, building on the earlier one filed in May 2021, alleges, among other things, that: (1) the federal government has not demonstrated that single- use plastics are toxic; (2) the failure to demonstrate toxicity deprives the federal government of the authority to rely on the criminal law power as the basis for upholding the validity of the regulation under the Constitu.