Hon. Rosa Galvez: Honourable senators, with great expectation from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes because at this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of the coming into force of the bill. Moreover, although Bill S-5 stipulates that the implementation framework must consider the principle of environmental justice, it must also consider the balancing of the right with other factors, including economic factors. Obviously, rights are subject to reasonable limits. Our charter and judicial system recognize this clearly. However, I couldn’t find any similar usage of balancing factors in other rights legislation. Colleagues, what if your right to religious freedom, for example, was balanced with economic factors? Would you accept that?

This right is better than nothing, and when Canadians will benefit from a form of this right, they will join 156 other nations around the world who already have this right enshrined in law in their constitutions. Interestingly, 110 of them afford this right constitutional protection, something that we are far from doing with Bill S-5.

Finally, I’m concerned about the government’s decision to remove the title of Schedule 1, “List of Toxic Substances.” Although the schedule is referred to as “the list of toxic substances” everywhere else throughout the bill, the title itself was removed. At first glance, it seemed like a minor omission since each substance on Schedule 1 has already been declared toxic under CEPA. However, upon further reflection, I think that it could have unintended or intended constitutional ramifications. The 1997 Supreme Court ruling in R. v. Hydro-Québec upheld CEPA as adopted in 1988 as valid legislation on the basis of its criminal law power. Justice La Forest, writing for the majority, noted that:

 . . . the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value. . . .

He also stated that the act “. . . is an effective means of avoiding unnecessarily broad prohibitions and carefully targeting specific toxic substances.”

In other words, CEPA is within its constitutional jurisdiction as long as it stays narrowly focused on regulating toxic substances, an analysis that is shared with the Canadian Environmental Law Association.

Under CEPA, a substance is declared toxic if it may enter the environment under conditions that may have an immediate or long-term harmful effect on the environment or its biological diversity, may constitute a danger to the environment on which life depends or may constitute a danger to human life or health.

Lead, mercury and plastics, for example, are on Schedule 1 precisely because they are toxic, despite what you might hear from some industry representatives. As with everything, there are cases where these substances do not pose a risk, but that doesn’t mean they aren’t toxic substances as defined by CEPA. Removing the label “toxic substances” from Schedule 1 could undermine the precedents established by the Supreme Court of Canada in that 1997 ruling, ultimately weakening the government’s authority to regulate these substances.

From another angle, simply naming this list as Schedule 1 is meaningless for most Canadians and gives no indication of what this list represents. At worst, it is misleading the public just to satisfy some industries that don’t like seeing the substances they use defined as toxic.

I have opted not to bring forward an amendment to reverse this government decision, but I hope the House of Commons will consider this issue seriously for clarity and transparency.

In conclusion, Bill S-5 does improve certain aspects of Canada’s toxic substance management framework, but as explained, there is still lots to cover. We really need to better protect our environment, as our health and safety depend on it. Vulnerable populations are overexposed to pollutants present in the water and fish they eat. Without proper labelling, we buy food and items that are sprayed or treated with substances that can bioaccumulate in our bodies. Plastics that are composed in their majority of toxic substances break into microplastics that are found today in human blood and placentae. Chronic, low‑dosage exposures are also very dangerous.

I hope that we will continue improving CEPA in the years to come and we won’t wait another 23 years to update this important law. Thank you, meegwetch.