Evidence of meeting #11 for Environment and Sustainable Development in the 40th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.
A recording is available from Parliament.
Chief Enforcement Officer, Department of the Environment
I will have to get back to you, but it's possible.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Is CEPA the most important statute? Is it an important act with respect to convictions and charges?
Chief Enforcement Officer, Department of the Environment
No, according to the data that I have, the most important acts as far as charges are concerned are the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the Migratory Birds Convention Act, 1994. Of the 502 cases I mentioned awhile ago, 136 are related to the first act, 246 to the second one, and 81 to CEPA. That may give you an idea. The other two account for the larger share of the volume.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
What is the maximum fine currently for the big industrial polluters?
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
It's one million dollars under CEPA .
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
You're proposing that it be raised to $6 million. In the past 20 years, how often has the maximum fine of $1 million been imposed?
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
It has never been imposed. The biggest fine ever collected was $100,000.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
The maximum fine for the big industrial polluters has never been enforced. How can you convince us today that, under this Bill C-16, the maximum fine will be enforced? I understand that it is being raised from $1 million to $6 million dollars, but if the maximum fine has not been imposed, how can we, by increasing the fine to $6 million, assume that the principle of the polluter pays will be enforced.
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
I think the point to make on this, Mr. Chair, is that when courts see a maximum, that's giving them a guidepost; it's giving them an indicator. At the same time, they're now going to see a minimum for the most serious offences, which is going to give them another guidepost.
It's a large range, and of course the courts will continue to use their discretion. But if you combine that with some of the other factors in the law, particularly the guidance on aggravating factors and on fines where a similar offence has occurred under another piece of legislation, that's going to give courts other guideposts. Whether that takes them to the maximum will remain to be seen.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
The bill includes quite an important aspect pertaining to determination of the penalty. You outline four or five factors to be applied in order to determine the penalty, including one that bothers me a bit. Among the aggravating circumstances to be taken into account in determining the penalty, you identify the offender's failure to take reasonable care to prevent the offence despite—and this is what bothers me—having the financial means to do so.
Why add this element? I want to be sure that it doesn't mean that an offender can receive clemency from the court because he had the financial means to take reasonable action to prevent the offence. Wouldn't this basically be a loophole? We want the law to apply to everyone.
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
There are a couple of points to make on that. One of the things the bill recognizes is that individuals, small corporations, and corporations have different means, and it's trying to balance the means to pay a fine with the actual fine.
But before that, it's trying to give the signal that it will be treated seriously. Many of the studies indicate that because we have such low fines, many corporations are treating fines as the cost of doing business. The bill is attempting to ensure that environmental pollution has a severe enough fine that the cost of doing business should be to prevent that pollution.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Page 11 of your presentation is titled "Enforcement Tools, Compliance Orders." As a parliamentarian, the word "may" always scares me. It says that "These may be imposed on any person who causes or contributes to the contravention and may require them to: [...]." It also says that "Persons receiving a compliance order may apply to the Chief Review Officer for a review of the order [...]." Isn't this once again the good old method whereby the use of the word "may," rather than "must," means that the law is enforced if it is deemed appropriate.
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
I have a couple of points to make on this. We have policies on each of our statutes that demonstrate how we use our authorities. The other thing that is important to remember is that to ensure fairness, a chief review officer will act as the mechanism for any disputes.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chairman.
I have a question for Cynthia Wright. I had the opportunity of looking at the recommendations from the 1998 Standing Committee on Environment and Sustainable Development. That committee and a number of other people recommended that all the information related to evidence of violations, together with any enforcement response, be made publicly available and be tabled with Parliament. I'm wondering why it's been decided to inform the public only of convictions—information that is already available through the courts. This seems needlessly narrow.
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
Could you elaborate on what kind of thinking went into where we went, Sarah?
Manager, Legislative Advice Section, Department of the Environment
The bill requires that corporate conviction data be made available on our registry. We found that it's actually not as easy as one would hope to find these records. It depends on where the decisions are located. There are provincial courts across the country.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I understand why you're doing that. I'm wondering why you didn't reveal all the other information.
Manager, Legislative Advice Section, Department of the Environment
The other information having to do with the status of investigations...?
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I'm talking about warnings, orders, administrative penalties.
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
Those things are summarized in our annual report. There are statistics on the number of investigations, the number of warnings, the number of environmental clients, and alternative measures. And there is other information at a summary level.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Why only at a summary level? I understand that British Columbia for quite some time has publicly revealed to people who exactly has been given a warning, charged, issued an administrative order, and so on. Why are we not making that information public?
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
Sometimes we do name them for a warning, although we haven't proposed that in this bill.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I'm not sure if the Department of Justice or Environment Canada would answer this, but I'm wondering about the reason for the decision to remove the power and discretion of the judge, on conviction, to direct that the convicted party pay moneys to an impacted community, an NGO, or any other party. Why is the discretion of the judge now being fettered and made a political decision, with respect to who should be compensated and who shouldn't?
Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment
The purpose of using the environmental damages fund is to address the issue of restoration or damage. Both CEPA and the Migratory Birds Convention Act have allowed for that, but there's been a lack of awareness. It is used about 15 to 20 times a year, roughly $200,000 to $300,000 a year. The purpose of this bill is to combine deterrence and denunciation with restoration. That is why it's directing the funds to the environmental damages fund.
