Environment Committee on May 5th, 2009

[Renée Caron]

That's not the purpose of this particular provision, because this would go to an educational institution. If this order were made, it would be for funds to go to an educational institution, not to the guild, for example.

[David McGuinty, Liberal, Ottawa South, ON]

A hairdressing school would be included, would it?

[Sarah Cosgrove]

Studies must relate to the environment.

[David McGuinty, Liberal, Ottawa South, ON]

I'm not being facetious, I only want to get a sense here. We want to make sure this is actually being directed to the right.... I mean, if you're learning how to handle toxic materials in a hairdressing salon school, that's related to the environment.

[Renée Caron]

I think it would be for an educational institution, so it can't go to a hair salon or to an employer or to a business. It has to go to an educational institution. Mr. Chairman, I believe the member mentioned colleges and perhaps universities. So it could be those types of organizations to which these kinds of awards could be directed, and it would have to be for a scholarship.

[David McGuinty, Liberal, Ottawa South, ON]

Well, I'm more concerned because.... I can't remember the statistics, but my recollection is that roughly 80% of high school graduates don't go on past high school, so they would be excluded from receiving any benefits, as we try to drive up environmental awareness, environmental training, shop steward training, millwright training, all of the things that go with the front-line application of environmental standards and environmental enforcement. I'm simply trying to see if we can broaden this somehow and try to get a better understanding.

I mean, it's fine to direct this to a scholarship form in college and university, but you're not going to catch the majority of Canadian society.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Mr. Bigras.

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

Thank you, Mr. Chairman.

This amendment is quite vague. Did you speak to the universities and provinces before introducing this amendment? It's somewhat paradoxical to give the judge discretion to pay the money directly to the universities.

[Renée Caron]

Mr. Chairman, this amendment concerns a provision that appears in three current acts. We'd have to go back to the start to see, but at the time Bill C-16—

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

You've already told us that. We're examining an amendment. I suppose that, if there's an amendment, there is consultation. Were the provinces and universities consulted before this amendment was introduced in committee?

[Sarah Cosgrove]

We did have extensive discussions with federal prosecutors and they did see our proposals. I don't recall a specific example where this particular provision was used, but I believe we were given some. I simply don't remember the details. And there were no issues raised; the prosecutors have never seen this provision used too broadly.

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

I understand that the choice of educational institution will be left to the judge's discretion. How will the funds be paid to the University of Ottawa, which is offering an environmental specialty, rather than to the Université de Montréal, which has a department of environmental sciences? Will the judge make that decision? Based on what criteria?

[Sarah Cosgrove]

I can add, Mr. Chair, that I guess the discretion is with the judiciary. The judiciary bases decisions on material presented at the time of sentencing by prosecutors and the defence.

In addition to the text of that actual order clause, that clause falls under the chapeau of the order power. I have in front of me the Canadian Environmental Protection Act chapeau, which gives additional direction to the courts--not the Antarctic Environmental Protection Act. As an example, this section says:

Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects...

This is one of those order powers available under that section. So the judge is bound to have regard to the nature of the offence and the circumstances surrounding the offence and to tailor, again, the order to those considerations, in addition to being bound to direct an amount to an educational institution for scholarships.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

I have Ms. Duncan, Mr. Woodward, Mr. McGuinty, Mr. Trudeau, and Mr. Ouellet.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, I'd actually like to speak in defence of the amendment.

I'm glad that the words “relate to the environment” are added in, if I'm correct that they are. I think that is a good addition. But I'd like to repeat the same concern I've had all along. We are reviewing statutes with blinders on, without any comprehension or direction from the various departments or the Department of the Environment on how they intend to apply these provisions or how they have applied them in the past.

I happen to have personal information, from my own experience, in knowing how these provisions are used, but I think it's really important for us to have the information from the government on how this would be applied and how it is going to be made useful. Even though the law has to rely on the word of the law itself, I think it's helpful if we have the context.

For example, will the enforcement officers be conferring with and advising the prosecutor, in the case of a penalty, on their recommendations for where the money should go? Normally that's the case. When these laws first came into effect, that wasn't the case, but now both the provincial and federal agencies have evolved so that in fact they do think ahead. They do provide advice to the crown, and in turn, the crown provides advice to the judge.

But we're looking at this as a blank slate. I'm presuming that in practice something like this is going to occur. I happen to know that at least one region of Environment Canada has thought ahead and actually has a running list of organizations and individuals that might benefit from sentencing. But I think it would be helpful to have a framework around how it's intended that this is going to be applied and made sensible.

Otherwise, I'm fully in favour of adding in that phrase. I think it's completely appropriate.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you, Ms. Duncan.

Mr. Woodward.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

Since we're here to decide whether or not to enact this amendment, we need to be very clear about the consequences of not enacting it. If we do not approve this amendment, then it means, in this case for the Antarctic Environmental Protection Act, that a court will have no explicit ability to direct money for scholarships. The wording of the Antarctic Environmental Protection Act will then be out of sync in terms of enforcement with all the other acts we're amending, or at least with the three that have been mentioned, which already contain this or a similar provision. I don't see any reason in the world why we would not want to give at least some ability to a judge to order scholarships, although I take some of the comments that perhaps on another day, if we did a comprehensive study of all the environmental enforcements that have occurred in Canada, we could get a notion of what kinds of scholarships might be useful, to whom, and where. I don't think it's our job as legislators to try to do that, quite frankly.

That leads me to my second point, which is that what we're trying to do here is enable or empower the court to find creative applications for this law. It was mentioned by the officials that we're trying to give them a suite of creative powers. We are not trying to lay down in tracks every detail of what they must do. I'm happy to say that in Kitchener some of the most creative judicial solutions have been crafted by judges acting under these kinds of general provisions. I think we should empower the court to do that and then we'll come back and see.

The alternative measures we have now in our Criminal Code and Youth Criminal Justice Act originally were the result of creative judicial work, and after 10 years of practice and working out the details they were codified. Maybe we'll come back and codify some of this, but right now we're just giving judges a little more free rein.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Mr. McGuinty, Mr. Trudeau, and Mr. Ouellet.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Chair, I don't see this as an all-or-nothing proposition. The fact that judicial activism, as decried by many colleagues of Mr. Woodworth in his own caucus, has been codified and is leading to creative outcomes is a good thing.

Ms. Cosgrove, what other discretionary allocations can judges make now? What choices can they make other than allocating money to scholarships for studies related to the environment?

[Sarah Cosgrove]

Your question has a complicated answer, in that it's inconsistent across the statutes. We compiled the comprehensive list in the overview we distributed on the first day of consideration of Bill C-16. It's on page 23 of that document. We can pass that page around in both languages, if that assists the committee.

[David McGuinty, Liberal, Ottawa South, ON]

What is the page you pointed out?

[Sarah Cosgrove]

It's a list of the suite of creative sentencing tools. I can go down that list, but I could also hand it out as well.

[David McGuinty, Liberal, Ottawa South, ON]

Would that list be consistent throughout all these amended statutes?

[Sarah Cosgrove]

It's consistent with the proposals between Bill 16...and the government motions would then ensure consistency of all nine statutes and that they reflect this list.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

If it's in both languages. we can get that and distribute it.

Do you have more questions?