Environment Committee on May 5th, 2009

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Have you finished?

Are there any comments?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

First, as a point of order, does one ordinarily ask the mover to speak in favour of the proposition, or should I begin without hearing that? I don't know what the usual procedure is.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Do you want to say anything else?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I began by introducing it. The purpose of this amendment, Mr. Chairman, is to ensure that the aggravating factors which the court must consider include, among others, the fact that the offender has failed to take reasonable steps to prevent the offence.

We would delete, at line 5, the following words: “despite having the financial means to do so”. Some NGO representatives appeared before us and said that it would be difficult to demonstrate the financial means of a business. Where aggravating factors are concerned, we should take into account the fact that the offender has failed to take reasonable steps to prevent the commission of the offence, quite simply, and not talk about financial means.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Would other committee members like to speak to this point?

Mr. Woodworth, go ahead please.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Merci beaucoup. The thing to understand about this is that it applies only to the question of what a judge will consider aggravating. The lack of taking reasonable steps is a lack of due diligence, and that alone is required to convict in every case. If you remove the words that Monsieur Bigras has requested, all that's left, in effect, is a failure to take reasonable steps or a lack of due diligence, and that section would no longer have any reason for existence because in every case there must be a lack of due diligence in order to convict. In that sense, it's not an aggravating feature, it's a feature of every conviction.

What the section as it's presently worded intends to do is to say that everybody who is convicted has failed to take due diligence or reasonable steps, but if you have a larger financial means and you still fail to take due diligence or reasonable steps, then that's aggravating. Companies that have greater resources and fail to use them should be treated more harshly, if you will, than companies that do not.

That's why those words are there. Without those words, you could as easily strike that whole subparagraph. I think it makes sense that the offender's ability to take reasonable steps may be considered an aggravating feature, so I'm opposed to the motion.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Are there any other remarks?

Mr. Bigras, go ahead.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I agree on the first part of what Mr. Woodworth said. We believe in due diligence, but we don't think that should be a factor regarding the financial means of the business. That shouldn't be considered with regard to aggravating factors.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Are there any other comments?

Mr. McGuinty, go ahead.

[David McGuinty, Liberal, Ottawa South, ON]

I'm sorry, I don't know how far apart we are on this. Can we get a better understanding here from both sides? Mr. Woodworth, I don't understand what you're telling us, and I don't understand what Monsieur Bigras' concern is. Can you please repeat, en français simple, in plain English, please, what your differences are? This is through you, Mr. Chair.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The words in question are the only words that make a difference to paragraph (d). Due diligence is required for any conviction, therefore there is no need to consider lack of due diligence to be aggravating. Of course it's aggravating, otherwise there would be no conviction. But it's not particularly more aggravating in one case or another. What is particularly aggravating, however, is if an offender has a greater financial capacity. Financial capacity has always been considered to be important in sentencing. If you have a greater ability to look after these things and you don't, then it's aggravating. If you take that out, you might as well strike the whole subparagraph, because mere lack of due diligence is required for every offence. There's nothing more or less aggravating about it in any given case; it's the means to take action and not using those means that makes it more or less aggravating.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Mr. Bigras, over to you.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I'd like to ask the official why financial means were included in aggravating factors.

[Renée Caron]

That's the way it has been in common law for a long time now. This is a codification of what exists in common law.

Moreover, if you delete the words “despite having the financial means to do so”, as Mr. Woodworth mentioned, that will make it so this clause on aggravating factors will not really make any sense because the question of due diligence applies where there is a determination of guilt, not at the time of sentencing.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I am prepared to withdraw my amendments, Mr. Chairman.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. Trudeau, over to you.

[Justin Trudeau, Liberal, Papineau, QC]

Basically, one of the things we're establishing is that one of the many aggravating factors would be that someone has extraordinary resources--a significant amount of financial resources--and didn't act responsibly despite that. There's not really a possibility here that someone would say it can't apply to them because they can't pay the minimum fine. I think that is the point that was brought up by some of the witnesses a few weeks ago.

Is that more or less a read on that?

[Sarah Cosgrove]

You're correct. This would be a separate consideration from the determination of undue hardship--I think that's what you're getting at--and then the exemption of the minimum. Yes, this would be separate. You're correct.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Indeed, Mr. Bigras wants to withdraw the amendment, but the unanimous consent of the committee is required to do so.

Does everyone agree to allow Mr. Bigras to withdraw his amendment?

(Amendment withdrawn)

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

In view of the fact that that amendment was related to amendments BQ-3, BQ-5, BQ-7, BQ-9, BQ-11, BQ-13 and BQ-15, I imagine that those other amendments will thereby be withdrawn as well.

(Amendments withdrawn)

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Shall clauses 12 to 16 carry?

(Clauses 12 to 16 inclusive carried)

[The Vice-Chair, Liberal, Francis Scarpaleggia]

We are now on clause 17. The government is introducing an amendment.

(Clause 17)

Mr. Warawa, do you want to introduce the amendment?

[Mark Warawa, Conservative, Langley, BC]

Chair, the amendment is that Bill C-16 in clause 17 be amended by replacing lines 32 to 35 on page 23 with the following: (5.1) Paragraph 66(1)(m)

Would you like me to read the whole text?

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Sure.

[Mark Warawa, Conservative, Langley, BC]

In the English version of the act, paragraph 66(1)(m) is replaced by the following:

directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in studies related to the environment;

And under subclause 17(6), paragraph 66(1)(n) of the act is replaced by the following....