HEAL Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Health

EVIDENCE

CONTENTS

Tuesday, May 21, 2002

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1115

The Chair (Ms. Bonnie Brown (Oakville, Lib.))

Mr. Basil Stapleton (Legal Counsel, Department of Justice)

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1120

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1125

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1130

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1135

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1140

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1145

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1150

The Chair

Mr. Jeannot Castonguay (Madawaska--Restigouche, Lib.)

Mr. Basil Stapleton

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1155

Ms. Claire Franklin (Executive Director, Pest Management Regulatory Agency, Department of Health)

Mr. Jeannot Castonguay

Ms. Claire Franklin

Â

1200

Mr. Jeannot Castonguay

Ms. Claire Franklin

Mr. Jeannot Castonguay

Ms. Claire Franklin

Mr. Basil Stapleton

The Chair

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ)

Mr. Basil Stapleton

Â

1205

Ms. Claire Franklin

Mr. Bernard Bigras

Ms. Claire Franklin

Mr. Bernard Bigras

Ms. Claire Franklin

Â

1210

The Chair

Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance)

Mr. Basil Stapleton

Mr. James Lunney

Ms. Claire Franklin

Â

1215

Mr. James Lunney

Ms. Claire Franklin

Mr. James Lunney

Ms. Claire Franklin

Mr. James Lunney

Ms. Claire Franklin

Mr. James Lunney

Ms. Claire Franklin

Mr. James Lunney

Ms. Claire Franklin

Mr. James Lunney

Ms. Claire Franklin

The Chair

Â

1220

Ms. Susan Baldwin (Legislative Clerk)

The Chair

Ms. Susan Baldwin

The Chair

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CANADA

Standing Committee on Health

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NUMBER 079

l

1st SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, May 21, 2002

[Recorded by Electronic Apparatus]

Á  (1115)  

[English]

    The Chair (Ms. Bonnie Brown (Oakville, Lib.)): It's my pleasure to call this meeting to order. We thought we might be beginning clause-by-clause today, but our last witness, at our last meeting, raised some issues of a legal and constitutional nature that the committee wished to hear more about. So this morning we have Mr. Basil Stapleton, who is the legal counsel on this file, and he is going to give his analysis of what Mrs. Ring said at the last meeting.

    I'm also alerted to the fact that we will not be doing clause-by-clause at this meeting. We're not ready. A number of amendments have been put forward, they're not yet translated. So we can take the first half of the meeting with Mr. Stapleton, assisted by Ms. Franklin and Ms. Graham, and in the second half we'll go through that outline of contentious issues that our researchers did for us. We got onto about page three at the last meeting before we lost quorum. We'll go through that, and that will give them some indication of where we want to go.

    So we'll begin this meeting with Mr. Stapleton taking the floor and giving us his response to the comments of the lawyer from our last meeting.

    Mr. Basil Stapleton (Legal Counsel, Department of Justice): Thank you, Madam Chair.

    The comments made at the last meeting related primarily to the jurisdictional question in relation to the authority of governments in Canada to regulate the use of pesticides. I think the best approach would be for me to lay out the law as I understand it in that regard, and in the course of doing that to address the points that were raised by Ms. Ring. Then, of course, I can answer any questions you may wish to raise in relation to the matter.

    The jurisdictional question, as has been indicated, is essentially a constitutional law question. To respond to it adequately, I think we have to answer basically three questions. First, what constitutional authority do the federal Parliament, the provincial legislatures, and the municipal councils have to enact legislation for the regulation of pesticides? Second, what is the nature of their respective constitutional authorities? Finally, what are the limitations on their respective authorities? I think, if we can find answers to those questions, a lot of your uncertainty may, in fact, be addressed.

    Let's begin with the provinces, because, basically, the authority to regulate pesticides rests with the provinces, because pest management has to do with the use and enjoyment of property. The purpose of pest management is to render the use of property more profitable, more productive, or more enjoyable, whether the property is being used for agriculture, forestry, mining, industrial purposes, commercial purposes, recreation, or leisure. So it is the provincial jurisdiction with respect to property and civil rights that is primarily in play. The other head of constitutional authority that is relevant at the provincial level is with respect to the regulating of matters of local interest and concern.

    So we begin with the basic premise that we're talking essentially about a provincial jurisdiction. Of course, the municipalities, being creatures of the provinces, can be given authority by their provincial masters to share in the regulation of pest management, including the regulation of pesticides. They, of course, derive their authority from provincial charters and from provincial legislation. One has to look at the situation in each province to determine what, if any, authority the municipalities have. If they are given the authority, they, of course, do have the legitimate exercise of that authority in relation to the use of pesticides.

    The fact that a subject is primarily within provincial jurisdiction does not, of course, mean the federal Parliament is excluded from all authority in relation to it. If there are aspects of the matter that fall within federal heads of authority under the Constitution, that authority can be exercised. In relation to the regulation of pesticides, there are several heads of federal authority that can be used with regard to certain aspects of the matter. The agriculture power, for example, which is shared with the provinces, can be used to some extent, in so far as the use of pesticides relates to improvement in the production and quality of agricultural produce. The trade and commerce power can be employed to the extent that pesticides cross international and interprovincial borders. But primarily, the head of authority at the federal level that can be used, and has in fact been used, to regulate pesticides is the criminal law power.

Á  (1120)  

    The criminal law power is available to address significant concerns in relation to important public interests. Over the years the courts have recognized that the protection of health and safety falls within the ambit of the criminal law. More recently, in the Hydro-Québec case, five years ago, the Supreme Court of Canada confirmed that the criminal law can also be used for the protection of the environment. So in a broad regulatory system with respect to the use of pesticides the criminal law power is the primary one that is available for use at the federal level, and it has in fact been used. That is in line with the other health protection legislation administered by the Department of Health. For example, the Food and Drugs Act is primarily criminal legislation, the Hazardous Products Act is primarily criminal legislation. So it's not unique that the Pest Control Products Act is supported primarily by the criminal law power.

    So the use of pesticides can actually be regulated at all three levels of government. In fact, that was confirmed very clearly by the Supreme Court of Canada in the town of Hudson case. The court commented on the complementarity of the regulatory systems and how appropriate it was that this kind of complementarity exist and that decisions in some cases be made at the local level, which is most in touch with the needs and desires of the people.

    What then are the limitations with respect to the use of these various constitutional authorities?

    The authority at the provincial level and the derivative authority at the municipal level relate to the regulation of property and civil rights. Such authority is not health-related, it is not environment-related, it is not safety-related necessarily. In other words, the focus we bring to this matter at the federal level does not have to be brought to it at the provincial and municipal levels. They may have concerns of a health or environment nature that they are addressing, but that doesn't have to be the basis on which they actually regulate. For example, in the town of Hudson case in the Supreme Court of Canada it was acknowledged that the town didn't actually bring forward evidence of a significant health or environmental risk. They didn't have to. They were acting under provincial legislation, which authorized them to enact bylaws for the general well-being of the community. In other words, it's a quality of life issue at the municipal level, which may or may not entail health concerns or environmental concerns, whereas at the federal level, relying on the criminal law, we must be able to support the regulatory system on the basis of evidence of serious concerns that have to be addressed.

    That, I think, is a very significant difference to be drawn between the nature of the authority that is exercisable at the different levels. One of the problems with Ms. Ring's presentation to you, which may have caused you some confusion, was that she focused on the sharing of the authority with respect to health protection. She seemed to be suggesting that the only basis on which any level of government can regulate pesticides is for the protection of health. That is not the case. If it were the case, we would have a very different regime from what we have at the moment in Canada.

    The focus has become, in respect of the jurisdictional question, the proposal to ban the cosmetic use of chemical pesticides. That seems to be the issue that has raised the jurisdictional question. The real question in addressing that one is, on what basis can any level of government in Canada impose an absolute ban on the use of chemical pesticides for cosmetic purposes? That, of course, was the issue in the town of Hudson case, and the court determined that clearly, it was within the authority of the town, acting under the provincial legislation, to enact a bylaw for that purpose without any evidence of a health or environmental risk.

Á  (1125)  

    Can that be done using the criminal law power? When the minister appeared before you, she made the point that using the criminal law power, we cannot ban the use of a pesticide simply because the use is considered to be cosmetic, the purpose is considered to be aesthetic, or the use is unnecessary or frivolous. We cannot criminalize activity on such a basis. We can only criminalize activity that is posing a significant risk to an important public interest, which in this case is public health, public safety, or the environment. I don't have to remind you that the minister is a constitutional lawyer of some reputation, and I think that is a significant matter as well, but I think it was what the minister had to say about that issue that led to the conclusion by some that the minister was saying there is no authority at the federal level to regulate the use of pesticides. That, of course, was not what she was saying at all. She was focusing on one type of use and addressing that one only. Clearly, there is authority at the federal level to regulate the use of pesticides. We've been doing it for at least 75 years, since the first pest control products act was enacted in 1927, the Agricultural Poisons Act. You cannot determine whether a product is suitable for registration without considering how it's going to be used and without imposing conditions on that use to ensure that it can and will be used safely.

    So the primary question raised by Ms. Ring is not an issue at all. Clearly, the federal Parliament can enact legislation that can regulate some aspects of the use of pesticides. That's not an issue. The issue is how far the legislation can go in that respect.

    The courts have been very clear that in exercising federal authority in an area that is basically within provincial jurisdiction, Parliament has to be careful not to go beyond the legitimate bounds of its authority in addressing the concern that it is legitimately entitled to address. In other words, the federal Parliament cannot use its criminal law power, or indeed any other powers, to oust the provinces from their legitimate jurisdiction. So if we were to attempt in this act, using the criminal law power, to take over the complete regulation of the use of pesticides and to try to oust the provinces and the municipalities from that activity, the legislation would be declared invalid, at least to that extent. In other words, there are limits on what can be legitimately done using the criminal law power.

    What the courts insist on is that to use the criminal law power properly, you have to employ a criminal law approach. I don't want to get too technical on this, but I think it's important to understand, because if you don't use a criminal law approach, you are actually getting into the area of regulation, and the area of regulation is really the provincial area. Let me explain, using Bill C-53, how the criminal law approach works.

    You begin with a basic prohibition. You prohibit some area of activity that is posing a significant concern to some public interest, in our case health, safety, or the environment. The Criminal Code contains, of course, a whole raft of such prohibitions against all manner of activities. That is the criminal law approach: you begin with a prohibition, and you provide that contravention of that prohibition constitutes an offence that is punishable by sanctions.

Á  (1130)  

    The basic prohibition of Bill C-53 is against the manufacture, import, sale, or use of a non-registered pesticide. That's the point from which we start. Anybody who contravenes that prohibition is guilty of an offence and liable to fines up to $500,000 and imprisonment of up to three years. What would happen if that were the only thing in the Pest Control Products Act? For one thing, we could have taken those provisions, put them in the Criminal Code, and have been done with it, but it wouldn't work, because that prohibition is too broad. The fact that a product is not registered doesn't mean that it poses a risk, so merely prohibiting the use of unregistered products is not satisfying the criminal law test. It's an appropriate place to start, but then we have to narrow down the application of that prohibition to activities that actually do constitute a significant risk.

    We do that in two ways. First, as was discussed at an earlier meeting, there is provision for exempting products from the prohibition. For example, the definition of control product is broad enough to include fly swatters, mousetraps, and any number of other things that are effective means of controlling pests, but don't pose any risk to the public. Trying to convict somebody under the prohibition for using a fly swatter would obviously not be successful, but what has happened is that under the exemption provision, devices that are not used to deliver actual pesticide substances are exempt. So we take a number of products out of the prohibition entirely; they don't have to be registered. That's one way of narrowing down the basic prohibition.

    The other way is to subject pesticides to a registration requirement. Anybody wishing to use a pesticide that is required to be registered must make application and support the registration of that product. The products that meet the test of acceptability are taken out of the prohibition by being registered. The ones that don't meet the test of acceptability remain within the prohibition. So in effect, the basic prohibition, which is really broad in its terms, applies only to those products that have been assessed and determined to be unacceptable for use or have not yet been presented to be assessed, and that is a legitimate criminal law prohibition.

    We've narrowed it down to that point, and so we have now satisfied the requirement that the criminal law prohibition is addressing only matters of significant concern to health, safety, and the environment or those products that have not yet been assessed for that purpose. If the use of chemical pesticides for cosmetic purposes were included as a separate prohibition in the bill, what would that do to the legitimacy of the criminal law approach?

    Let's take the simplest of examples. It wouldn't work in any event, because the language is much too vague to be in a statute, but let's suppose that there were a provision in the act that no person shall use a chemical pesticide for any cosmetic purpose. That would be a criminal prohibition in this statute, and it would be an absolute prohibition, because no means would be provided for narrowing the scope of it. Every pesticide that is currently registered for whatever cosmetic purpose might be defined to be would have to be amended or cancelled to remove those uses, and no person would be permitted to make application to register a chemical pesticide for a cosmetic use, because the minister couldn't entertain the application.

Á  (1135)  

    We would then have two basic criminal law prohibitions, one relating to the cosmetic use of chemical pesticides, the other relating to all other pesticides. The general one would have provision for assessing pesticides to see whether they actually fit the criminal law mode, meet the test, the other one wouldn't. There would be no means of testing a pesticide to see whether it was safe for cosmetic purposes. That is really the issue the minister was getting at. That prohibition would have to stand on its own, and if it were challenged as an improper use of the criminal law, as an extension into provincial jurisdiction, the crown would have to be able to convince a court that there was no chemical pesticide either in existence now or that might be created in the future that could be safely used for a cosmetic purpose. It would come down to that. The question is, could the crown satisfy that onus? It's not for me to say, obviously, but that is the question that will have to be addressed.

    The other point that has been raised by a number of the witnesses before the committee is that the basic problem with the bill is that it does not use a precautionary approach with respect to decision-making on the registration of pesticides, so that because it does not use a precautionary approach, it is not capable of making a proper assessment with respect to the use of pesticides, particularly with respect to the cosmetic use of chemical pesticides. That type of allegation constitutes a very serious misreading of the bill. Not only does the bill entail a precautionary approach to the decision-making on registrations, it in fact uses a precautionary approach that provides a much higher level of protection to health, safety, and the environment than, for example, would the use of the Rio declaration approach. Let me explain why that is.

    In order to meet the test of acceptability, a pesticide has to satisfy the operational test of acceptability that is used under the current act and would be used under the new act. The working definition of acceptable risks, for purposes of the act, is that there must be reasonable certainty that no harm to human health or the environment will result from exposure to or use of the pesticide, taking into account its proposed conditions of registration. In other words, before the minister can register a pesticide, she must be satisfied that there is reasonable certainty that no harm to health or the environment will result from the use of or exposure to the pesticide, taking into account the conditions at registration.

Á  (1140)  

    Suppose we were, for example, using the Rio declaration precautionary approach, which has come to be characterized by many as a principle, which I think is misleading, because it tends then to give it some kind of universality it was never intended to have. The taking of precautionary measures under the Rio declaration is triggered by evidence of a threat of serious or irreversible harm. So under that precautionary approach it would be indicated that the minister should deny an application to register a product if there is evidence of serious or irreversible harm. Compare that with the standard the minister actually uses, which is a much more stringent standard and provides a much higher level of protection.

    So there has been a misunderstanding and a misreading of the legislation in respect of whether, in fact, it uses a precautionary approach, and if so, which approach it uses. The key to the use of a precautionary approach is that it should be designed to fit the circumstances it's addressing. An attempt to use one precautionary approach to meet all circumstances is inappropriate, and in our case it will fall short of actually providing the level of protection we really want.

    Considering, then, that before a pesticide can be registered, the minister must be satisfied that there is reasonable certainty that no harm will result to health or the environment, can it be said that it doesn't provide an adequate test with respect to the cosmetic use of chemical pesticides? How much higher a level or standard of protection can be provided? The only higher level of protection would be having an outright ban on the use of all pesticides. That would be one solution to the problem, to simply put in the Criminal Code a ban on the use of all pesticides, because if the standard that's being used at the moment is not adequate, the only way of improving it is by having an outright ban. Of course, the criminal law would not support that. The criminal law simply would not support an outright ban, because it cannot be said that every pesticide, for every use, cannot be used safely.

    If we don't have a ban of the cosmetic use of pesticides in the bill, what happens with respect to those products? What happens to them is what happens with respect to any other pesticide. They are subjected to the acceptability test. If they meet it, they are acceptable and registered. If they don't meet it, they are refused registration. If, after registration, evidence comes to light to suggest that they are not acceptable or may not be acceptable, they are subjected to the two post-registration processes, re-evaluation or special review, and if they fail, as a result of those reviews, to satisfy the acceptability test, they are removed from the system.

    While I'm speaking of this, I perhaps should address why it is we saw fit to include the Rio declaration of precautionary approach in one section of the bill. It's because, in the context of a registered pesticide, where evidence has come to light that there may in fact be a problem, as a result of the use of the product, that maybe there is a risk that was not previously detected or assessed, the minister should not have to await the outcome of the special review or the re-evaluation before being able to take action. That may, in fact, be a situation in which there is reason to believe that there is a risk of serious or irreversible harm, a threat to health or the environment, and that is an appropriate circumstance in which to use the Rio declaration. That's the circumstance in which it was intended to be used, and it can be used pending the outcome of the special review or the re-evaluation. In other words, before we reach the point of scientific certainty as to risk of harm or no risk of harm, we can take the interim measure, to avoid the possibility that this is an unacceptable product for use.

Á  (1145)  

    So that's how we propose to use the Rio declaration, as an interim measure, pending the outcome of the re-evaluation or the special review. Once the re-evaluation or special review is completed, the same acceptability test is applied as was applied when the product was registered. If it is determined as a result of the re-evaluation or special review that the product is no longer acceptable, the product must be cancelled or the use that has been found to be unacceptable must be removed. On the other hand, if as a result of the special review or re-evaluation it is determined that the product and the use continue to meet the test of acceptability, of course, it will be confirmed. That is an approach that is entirely consistent with the use of criminal law, and that is why this approach is built into this act. We did not want to be faced, over the next ten years, with litigation over the validity of provisions in the bill, when the resources could be much better used regulating pesticides.

    So we've been very careful in putting together a federal act based primarily on the criminal law power that meets the legal requirements for use of the criminal law power and provides a level of protection that falls short only of an outright ban on the use of all pesticides. That, in my humble submission to you, is as far as we can legitimately go.

    There is just one other item I'd like to raise. It's almost peripheral, but nevertheless important. In this morning's presentation, and in a number of the other witnesses' presentations, it was urged that the federal Parliament and the minister should take leadership in the issue. It was also stated that after all, the Department of Health Act gives to the Minister of Health the responsibility to protect health in the country. Those are statements that clearly cannot stand without qualification.

    Leadership can be taken through legislation only if there is legislative authority to begin with. So the fact that the minister may be interested in taking leadership doesn't mean that therefore, we can rush ahead and put in place any kind of leadership that is considered to be appropriate. If it requires legislation, it must be duly authorized. There is a whole scope outside legislation where the minister can show leadership and where the jurisdictional question doesn't arise. You may be aware of the fact, for example, that the Pest Management Regulatory Agency is very actively engaged in what is called a healthy lawn strategy, which is pursued in cooperation with the provinces and interest groups. That is not a legislated strategy, and it doesn't give rise to any jurisdictional questions. It's a cooperative approach.

    To deal with the other misconception, the Department of Health Act doesn't give the minister any authority that is beyond the authority of the Parliament of Canada to give. The Parliament of Canada cannot get around the constitutional restrictions by purporting to give to the Minister of Health in the Department of Health Act authority the Parliament itself doesn't have. So when the Department of Health Act says the Minister of Health has the primary responsibility for administration of legislation and programs dealing with health protection, that's quite true, but the legislation and the programs have to be within the proper confines of federal authority.

    The other question, of course, is whether it's really a matter of responsibility or authority? There is no responsibility, basically, to protect health--I'm speaking legally at the moment. The Constitution doesn't impose on any government the responsibility, as such, to protect health. It gives authority to do it, and if the authority is taken on, it must be done properly, but to simply say the Minister of Health has the responsibility to protect the health of Canadians is not an accurate statement. She does not have either the responsibility or the authority to do any particular thing, and certainly not the authority to take over all use of pesticides in the country.

Á  (1150)  

    That's probably more than needed to be said, but I hope in the process I've addressed the concerns arising out of Ms. Ring's presentation. Mind you, I'm not intending to be critical of her, because I understand that she came on short notice and was coming from a particular perspective, dealing with a health issue, so she probably didn't have time to analyse the bill. I just want to make the point that at face value, the presentation really doesn't raise serious questions about what the minister had to say to you or about inadequacies of this particular bill. Neither do I intend to be critical of the other witnesses who appeared or to question their sincerity. I think they're all very sincere, but commitment and sincerity don't necessarily give a basis for the use of the law, and that really is my only point. We are limited in the authority we have, and we've used it, I think, as best we can for the purpose.

    The Chair: Thank you.

    I'm wondering if any of the members have any questions on the points you have made.

    Dr. Castonguay.

[Translation]

    Mr. Jeannot Castonguay (Madawaska--Restigouche, Lib.): I'm trying to understand the precautionary approach principle. You stated that when a product is re-evaluated because there are reasonable grounds to believe that it may cause serious or irreversible harm, as stated in the Rio declaration, the precautionary principle is applied. However, you also stated that this principle cannot be applied initially because the product must first be evaluated to determine whether or not it poses a health risk. I'm trying to get my head around this principle.

[English]

    Mr. Basil Stapleton: To get a proper understanding, I should refer you to the scientists, because it's how the risk assessments are actually done that explains how you get to the point of a decision. It's not based only on the evidence of a threat of serious or irreversible harm. You don't need that basis for deciding not to register a product. If the officials would care to engage in an explanation of how the risk assessment is done, actually utilizing the operational definition, I think you would understand much better.

Á  (1155)  

    Ms. Claire Franklin (Executive Director, Pest Management Regulatory Agency, Department of Health): I'll follow up with some comments. What appears to be part of the concern is use of the precautionary principle. I'm not sure everyone really is using it or considering the use of it on the basis of what the definition is, but it really is perhaps more a conceptual issue. If you have any uncertainty, shouldn't you apply a precautionary principle or approach? The terms, as Basil has stated, have been used interchangeably. I don't believe they were necessarily intended that way to start with, but in fact, they've been used the same way.

    For a product that's on the market, there may be some information to suggest that there's a potential problem. The precautionary principle gives the minister one additional way of dealing with that, and quickly, so that if you want to do something, you can utilize the precautionary principle to take action while you're getting more information to clearly delineate whether there is or is not a problem.

    When we're talking about making a decision for a brand new product that is not on the market, it's not out there, people are not exposed to it, the environment is not exposed to it, we don't make a decision to register that product when there's any uncertainty. We must have all the information, and it's the registrant's responsibility to provide that information, before we make a decision to register the product.

    That, as Basil points out, is the ultimate precautionary approach. If we have any questions or reason to believe we need more information to assure ourselves that there's reasonable certainty of no harm, we simply do not register the product. We don't need another tool to deal with what we should do in the event that there may be people exposed and there may be a problem. That's why we've tried to very clearly point out that the precautionary approach or principle on a product that's out there gives you that extra piece that you may need to take quick action, but we don't put that product on the market if it's a brand new active. That's why it's inappropriate to utilize a precautionary principle to define what it is that's done for a brand new product that is not already on the market.

    Does that help?

    Mr. Jeannot Castonguay: Yes. It's very complex, but I try to understand, because I'll have to make up my mind on where I go on this. Because the product is not on the market, that principle doesn't apply, because we have to demonstrate that there is a risk. If I look at the Rio declaration, it speaks of threats of serious or irreversible damage, but to demonstrate that, we have to put it on the market. Am I right in looking at it this way?

    Ms. Claire Franklin: If a product is registered, how do we deal with it if it looks like there's a problem with it?

  (1200)  

    Mr. Jeannot Castonguay: This part I do understand.

    Ms. Claire Franklin: Okay. It's been registered for several years, it's out there, but there may be information that turns up that was unexpected, for whatever reason--that's possible. We're saying we then want to be able to act quickly. So that deals with what we do with the suite of pesticides that are already registered or whatever chemicals are already registered under other pieces of legislation.

    One of the major differences with pesticides, compared with other chemicals that are regulated under other pieces of environmental legislation, is that they're not allowed to be used until there's an enormous amount of data that allow us to say whether it causes cancer, birth defects, reproductive effects, whatever. Chemicals regulated under CEPA have nowhere near that burden of proof before they're allowed to be used. So there's a very major difference in the way various chemicals are regulated, and with pesticides, we have to be able to answer those questions scientifically before we allow a product to be put into commerce.

    That goes well beyond a suggestion that there may be a serious or irreversible problem. It doesn't have to be serious or irreversible, it could be an effect we simply feel is inappropriate. We're looking for a registration that will allow us to say there's reasonable proof that no harm will come when that product is used. So it's a more stringent requirement.

[Translation]

    Mr. Jeannot Castonguay: Am I to understand then that if this principle were stated in the preamble and if I wanted to register a product, I could argue that you have not demonstrated to me that the product poses a serious threat of irreversible harm and that accordingly, you must approve it for registration? Could I go so far as to make that argument? Have I understood correctly?

[English]

    Ms. Claire Franklin: That's a possibility.

    Mr. Basil Stapleton: It could well come to that. The whole purpose of a precautionary approach is to decide at what point and under what circumstances precautionary measures should be taken. When a manufacturer applies to register a product, it will either get registered or it won't. The decision against registering is the precautionary measure that will be taken. The question is, what should support a decision to take that precautionary measure? Should it be taken only when there is evidence of a threat of serious or irreversible harm, as under Rio, or should it be where there is a likelihood of any harm, as under the PCPA? Which would you prefer? Which trigger for the taking of a precautionary measure is the more appropriate? In our view, it's the one that's built in here. We shouldn't need to have evidence of a threat of serious or irreversible harm in order to be able to turn down a registration application. We should be able to turn it down if there is any reasonable likelihood of harm.

    So you're quite right. If, for example, we were to write the Rio declaration into the preamble and to make it applicable to all decisions under the act, we'd be lowering considerably the level of protection by telling the minister, you should only refuse a registration if there is evidence of serious or irreversible harm.

    The Chair: Thank you. Thank you, Mr. Castonguay.

    Mr. Bigras.

[Translation]

    Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): Thank you, Madam Chair.

    I'd like to focus once more on the Parliamentary Secretary's question, for the sake of clarity.

    When some uncertainty persists as to a product, must the precautionary principle be applied? You stated that it could be applied. If I understand correctly, there is no mandatory requirement that a precautionary approach be taken if some uncertainty exists. Therefore, I'd like you to tell me how you would apply the precautionary principle.

    Moreover, you state that when there is some uncertainty, the precautionary principle is applied and the use of the product is banned until - and I'm using your own words here - there is reasonable scientific certainty that no harm will result. Why kind of reasonable scientific certainty are we talking about here and would this constitute proof that the use of the product does not pose a health risk?

    It's a two-part question.

[English]

    Mr. Basil Stapleton: With respect to the first part of the question, the answer is that the refusal of a registration is mandatory if the product is found to be unacceptable according to the standard, and that's both with the original registration of the product and following the completion of a re-evaluation or a special review. The minister has no discretion in the matter. If the product is determined to be unacceptable, it must be refused or it must be cancelled. There is no question about that.

    If you look at the Rio declaration, it's much more fluid; lack of scientific certainty will not be used as a reason for taking precautionary measures. That's not necessarily mandatory, nor indeed is it an appropriate basis, in the sense that it also has built into it consideration as to whether the measures are cost-effective, which, again, is not a consideration with respect to the registration decisions or the final decisions.

    The second part of the question is more scientific than legal, I think, the basis for arriving at that reasonable certainty of no risk of harm or risk of harm.

  (1205)  

    Ms. Claire Franklin: I believe the precautionary principle was considered in the very early stages for use with newer, emerging areas where it is not easy to answer very specific questions. Instead of saying one would not take action until one had all the definitive evidence, one would be able to move prior to that. I don't believe that's a specific end-point. I think it relies on a level of scientific judgment as to whether or not there's enough reason to take action. These things were never intended, and I think that's why there was great care, when the principle was first articulated, to make sure it was not something that was going to be used on a frivolous basis. So there is a level of scientific judgment as to when one would utilize that.

    We have in the pesticide area, because products are registered and we have the authority to remove registration, perhaps a capacity that's faster, stronger, and more reliable than relying on something that's perhaps broader. It does allow you, if there is new and emerging information, scientific information, not to wait until you have all the specific details.

[Translation]

    Mr. Bernard Bigras: I have another question. What kind of weight do you lend to studies that have been conducted on learning disabilities in children when you re-evaluate and register certain products? Do you regularly take such studies into consideration?

[English]

    Ms. Claire Franklin: Certainly, if there are studies that have the kind of information one can use. I could also point out that behavioural studies are part of the battery of tests that are done when making a decision, so that there's information looking at direct impact on the nervous system, as well as behavioural tests that would give an indication as to whether there would be any impacts. All that information would be taken into consideration, after the fact as well, on a re-evaluation.

[Translation]

    Mr. Bernard Bigras: A number of groups have told us that studies on learning disabilities associated with the use of certain products were in many cases the best studies available on risk levels. Therefore, throughout the product re-evaluation and registration process, are these studies taken into consideration as risk assessment studies applying to children as well as to the general public?

[English]

    Ms. Claire Franklin: They would be included in the assessment. The challenge with studies, both epidemiology studies and other studies in human populations, is to be able to separate the impact of a specific chemical from other confounding variables or facts that may be there. The answers are not necessarily as clear-cut and straightforward as one might hope, but they would certainly be taken into consideration. In fact, the additional safety factors that are being used were primarily brought in because of potential impacts on the developing nervous system, not an area where we have all the scientific answers. The wider margin is there to compensate for the information that is currently being generated.

  (1210)  

    The Chair: thank you, Mr. Bigras.

    Mr. Lunney.

    Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance): Thank you, Madam Chair.

    To go back to Mr. Stapleton's explanations earlier about the approach of using criminal law, more or less, it seems to me you were suggesting that there was an all or none approach here with criminal law, that you can't be selective and define or limit cosmetic use. It's a question of all or none: you either ban it or you allow it. Did I understand it correctly, that if you want to use the criminal law approach in managing, as under a federal system, you can't use selection or restrictions?

    Mr. Basil Stapleton: The criminal law can be used appropriately to ban or prevent certain uses and allow others. Each use has to be evaluated on its own merits, even with the same product. Again, the scientists could explain to you much better than I how the risks vary, depending on the nature of the use. So it's not inconsistent with the use of the criminal power that a product might be approved for use in some ways, but not in others. That is based on a risk-assessment, it is not based on the fact that the use is considered to be frivolous. That's the point we are making, that you can't use the criminal power to criminalize frivolous behaviour, but you can certainly use it to criminalize risky behaviour, if you see the difference.

    Mr. James Lunney: I appreciate that clarification, because there was a rather lengthy explanation there, and I might have misunderstood the direction you were going. So it is acceptable, as long as it's based on risk-assessment and not some other definition.

    Ms. Franklin, we've talked about the stringent requirements that are in place before approval for a product's coming on the market, and I believe the company is expected to provide the information for the risk-assessment. There have been big concerns about the volatility of many of these products, that they evaporate and show up hundreds of miles from where they're actually used. This kind of concern goes way beyond the ability of an individual company to assess, wouldn't you agree?

    Ms. Claire Franklin: There are ways to predict what the volatility might be, and that's why, under TSMP, there are a lot of end-points you're looking at. You can look at physical chemical properties to predict whether or not a chemical will have the capacity to move. These are generally products that are soluble in lipid material. They tend to be able to bioaccumulate, to be able to volatilize. Ten or fifteen years ago it became apparent that chemicals can stay in the environment, they can volatilize, they can travel. When they get over something that's fairly cool, like a body of water, they'll precipitate. They very graphically call that the grasshopper effect. It was not acknowledged 40 years or so ago that this could occur, but what we've seen over the years is a restriction on products that have the physical chemical properties associated with the ones we know can travel that way. So a company can provide the kind of information that would allow us to see whether or not a chemical has the potential for that.

  (1215)  

    Mr. James Lunney: So are there restrictions currently in place on such products?

    Ms. Claire Franklin: Absolutely.

    Mr. James Lunney: Because there are certainly big concerns about the accumulation of these products in the food chain.

    Ms. Claire Franklin: That's right. There haven't been organochlorine products registered, and I'm not aware that there are new organochlorine products being submitted anywhere in the world for registration. Those are some of the factors that countries are aware of, and that's why there's been a move away from that type of product.

    Mr. James Lunney: Are such products still in legal use in Canada?

    Ms. Claire Franklin: There are some products, DDT for example, that are still used in other countries. They're not used and haven't been registered for use in Canada for many years. There has been a fair bit of activity with Mexico to try to reduce the amount of DDT they use. They use it in their malarial control programs, and they've had phenomenal success in moving away from DDT, with a very large reduction in the number of cases of malaria. A country such as Canada does work through other avenues to assist and influence countries that are still using products that may find their way up the northern corridor to reduce and stop use of those kinds of products.

    Mr. James Lunney: As I understand it, there are some concerns about products used in mosquito control, malathion for example. Is that still being used in Canada?

    Ms. Claire Franklin: Malathion is registered for use in mosquito control in many countries. It's undergone a recent re-evaluation, and the evidence is that it's a reasonable use. The issue, I guess, for any of these is how you use them and where you use them. I guess there's a certain amount of concern if these products are going to be used over urban areas.

    Mr. James Lunney: Maybe you can clarify this for me. Is it malathion that has been related to reproductive capacity in amphibians?

    Ms. Claire Franklin: There have been a number of studies recently looking at a number of different products. Off the top of my head, I don't recollect whether that's in the group that was used. Amphibian reproduction, of course, is a pretty challenging issue, and there are many possible reasons for the problem. The science is certainly looking at a number of different things, UV, viruses, infections, chemicals. I'm not aware that there's been any clear delineation of the actual reason for this in all parts of the world, but there seems to be a decline in the number of amphibians.

    Mr. James Lunney: So it's fair to say, then, that as far persistent organic pollutants go, most of the products being used as pesticides in Canada today don't fall into that category.

    Ms. Claire Franklin: That's correct.

    The Chair: Thank you, Mr. Lunney.

    Seeing no further questioners, on behalf of the committee, I'd like to thank very much our witnesses. I think, if I can interpret for the committee, you resolved a fairly major problem we were facing after the last witness we heard before the break. We may have to call you and ask questions before we're finished, but we're grateful for the guidance you have given us to this point. Thank you very much.

    To the rest of the committee, as I said at the beginning of the meeting, we're not going to do clause-by-clause today, because there are apparently a number of amendments that have not yet been translated, and a couple of our members haven't got their amendments in. The absolutely final deadline is the end of the day today. They have to be drafted amendments. They can't just be in your own words. They should have been sent to the drafters, have come back to the member, and have been sent to the clerk by the end of the business day today, 5 o'clock.

    I don't quite understand how we could start clause-by-clause tomorrow if we're just getting final amendments tonight. Will those have already been translated?

  (1220)  

    Ms. Susan Baldwin (Legislative Clerk): A bit of preparation would be needed to get a complete package for the committee, particularly in working out the voting pattern. We could probably do it, but since I'm not quite sure what the number is that's coming in, it's difficult for me to say for sure that we could have a package ready for you by 3:30 tomorrow. I think we could, but I understand there are a large number still coming in.

    The Chair: Yes, I'm actually quite amazed, I don't know if the rest of you are, that we're at about 200 amendments, and the questioning of the witnesses that took place did not suggest to me that level of concern with the bill. But if they come in and they're legitimate, we'll deal with them one at a time.

    I think the legislative clerk is referring to the fact that they will naturally fall into groups. One amendment of substance might cause changes further down, so we would probably do the group together. If the substantive amendment fails to carry, that eliminates the six or seven that tag along with it.

    Ms. Susan Baldwin: The consequential ones, yes, and it's impossible to determine the consequential amendments until you've looked at everybody's amendments all together. I can't sort of grab the first 20 in the bill and come in and assure anybody that the voting patterns on these are fully understood.

    The Chair: What Susan is saying is that probably we can have a package ready for tomorrow, but I'd rather start into this knowing you feel quite confident that it's all together in a logical way. So I think everybody should be ready for the possibility that at the last minute tomorrow I may have to cancel the meeting, if we're not ready. The staff persons who are here should be ready to alert their members, watching the e-mail about 3:05 tomorrow. We will hope to go ahead tomorrow with clause-by-clause, but there's a possibility that the package may not be ready, because of the large number of amendments. Our own clerk tells us he thinks we'll have about 200 in all. We want to make sure we don't have to go through the bill twice.

    So I declare this meeting to be adjourned. Hopefully, I'll see you tomorrow.