Environment Committee on March 26th, 2009

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm very supportive of the establishment of the fund, but that does not answer my question. My question is, why is the decision being taken away from the judge? I was delighted to discover that the Ontario region of Environment Canada was on its own in compiling lists of people who could do good work if the judge directed that the convicted party pay funds to them or to compensate the community. This bill is removing the power of the court to do that. Instead, it is telling the judge that he can refer the matter to a minister, who can decide if he thinks somebody deserves to be paid.

[Sarah Cosgrove]

The reason the staff compile those lists, and all regions do, is that often the judge is not prescribing. We want to be ready to have a group of individuals or organizations who can use the funds. The purpose of not specifically directing it—although if I'm not mistaken the courts can still recommend funds to an individual organization—is to ensure that we have flexibility. We have some areas in which we don't have an organization ready. Our objective is to work twofold: to encourage the restoration to happen as close as possible, and to be ready with a list of possible organizations and expertise.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you. I fully understand that, and I think it was a great move several years ago by the Ontario region to do that. But that is different from taking away the power of the judges to make that decision. Indeed, the investigators and prosecutors can recommend names, but now the judge doesn't have that power.

This omnibus bill does an incredible job of thirty-years-overdue provisions, expanding the powers and mechanisms for effective enforcement, and I commend the Department of Justice, Environment Canada, and Parks Canada for moving forward with these amendments. At the same time, I'm wondering why you did not also take measures as recommended in 1998 by the parliamentary committee. An additional one of those recommendations was to bring forward into all the environmental statutes the same provision that's in the federal Fisheries Act. I think it's also in the Migratory Birds Convention Act. That provision is that where there's a private prosecution, the party bringing the private prosecution has a right to half of any fine imposed. Why was that provision not brought forward, as was recommended by the parliamentary committee?

[The Chair, Conservative, James Bezan]

This is a policy discussion. You've got to remember that the act comes from the Minister of the Environment, who takes this through into policies developed by cabinet. I don't want to put our public servants, as laid out in chapter 20 of Marleau and Montpetit, in a position where they're trying to interpret the policy discussions that might have taken place at cabinet and betray that confidentiality and their ability to provide expert advice to cabinet.

I just have to instruct you, Ms. Duncan, that we have to be careful in these situations with public servants. In no way do I expect the witnesses to feel they're obliged to answer any of those types of questions.

Respond as you see fit.

[Cynthia Wright]

I think the government does support the strong public participation agreements, and that issue is still under study.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay. Thank you.

I'm wondering if you could explain, Mrs. Wright, why this time around, when all these amendments were tabled—particularly for the Canadian Environmental Protection Act—why no updated, revised enforcement compliance policy was tabled, which happened when the first CEPA was first tabled in Parliament. This would have given us an idea of how the department is planning to use this new array of tools and provide clarity for the people who are going to be regulated.

[Cynthia Wright]

Our first effort is to focus on developing the bill and supporting the committee in understanding the bill. We do, as I said, update our policies on compliance enforcement. We will do that should Bill C-16 be passed.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Is revising the enforcement compliance policy in process now?

[Cynthia Wright]

We've just finished this work, so I think we'll turn to it, as it looks as if this bill will move forward. We usually wait until a bill is passed before publicly revising our policies and directives.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So no criteria will be available. This bill, I'm anticipating, is going to be enacted fairly quickly, we've agreed to that. So there won't be any known public strategy on how you're going to use, for example, these new provisions under this new statute you've enacted.

[Cynthia Wright]

We have some guidance in terms of our intent behind putting in these provisions. For instance, the intent of having the administrative monetary penalties is for simple offences such as filing a report at a late date. Those kinds of simple procedures, as my colleague said, can be dealt with efficiently to allow staff to focus on more serious matters.

[The Chair, Conservative, James Bezan]

Just to follow up on that, you've got to remember as well that civil servants aren't there to predict what Parliament is going to do until the bill becomes law.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Usually the policy is in place as soon as the statute's enacted.

[The Chair, Conservative, James Bezan]

We've always got to remember that there's a process, and we have to respect that process. That includes getting bills passed first.

With that, Mr. Woodworth will finish off the seven-minute round for us.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I want to begin by following up on one of Ms. Duncan's questions about not publicizing warnings, for example. I have the general notion that a warning should be given at a very low threshold of evidence where there might be potential damage or where there might be issues arising, but where perhaps the full due process of investigation and evidentiary principles in court hasn't applied. Am I right about that?

[Albin Tremblay]

Warnings result from a complete investigation, a complete process, but it is more the nature of the offence that leads us to determine whether a warning is more appropriate than a more severe measure. Among our enforcement policies, one relates to CEPA, another one to the Fisheries Act and yet another one to legislation respecting wildlife. The process is clearly explained. There is a range of tools available to us. The warning is really the lowest level. There may be minor offences, first offences or bona fide cases. It's a matter of judgement, which has to be applied to each case.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Sure. I guess the point I was driving at is that I would be a little uncomfortable if in fact people's names were being published in circumstances where they didn't have the due process of a trial to defend themselves. Does that sound like a reasonable principle to you?

[Albin Tremblay]

I can't say too much without being afraid of saying the wrong thing. I can find out whether it's a reason why we don't do it, but I don't think that that is the main reason why we don't do it, for the time being.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'd like to switch gears a little bit and just ask you about the department's resources. To coin a phrase, it's sort of the elephant in the room. We can have whatever laws we want on the books, but if we don't have feet on the ground, we still won't have an effective system.

I understand that budget 2007 allocated some $22 million over two years to increase the number of environmental enforcement officers. I wonder if you could give us some details about what the numbers were previously, what they are now, and what stage the augmented enforcement capability is at.

[Albin Tremblay]

Actually, the resources allocated in the 2007 budget provide for a 50% increase in the number of enforcement officers in the country. In actual figures, that means 106 new enforcement officers in Canada, who are assigned to the various Environment Canada regions. What must be borne in mind is that this is a 50% increase over what we had, and this is really significant and very important.

At present, 80 new officers have already been hired and are already at work in the field. A training session for our new wildlife enforcement officers was just completed in early March. A final training session for our officers working in environment will begin in May and end in early June. At that time there will be a total of 106 new officers operating across the country.

This also enable us to open new offices in locations or sectors where there weren't any up to now, including Ontario, British Columbia and Quebec. This enables us to make a significant increase in our intervention and enforcement capacity in Canada, compared to our earlier capacity.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

That's excellent news; that's good news. I think it's an important piece of what we're doing here today in trying to beef up enforcement measures.

I want to also ask you about what I understand was a further $66-million allocation over five years for enhancing enforcement. I suppose that in addition to enforcement officers, if there is to be an increase in compliance efforts, there will need to be analysts and laboratory resources.

I don't know whether you came here today prepared to talk about those details, so I'll understand if you can't. Are you able to give us some detail on how that will play out? What will be the allocation of those funds?

[Cynthia Wright]

Budget 2008 resources are complementary to the enforcement officers on the ground. They are enabling laboratory support, data collection analysis, the management systems to manage that information, as well as the management systems to track compliance rates, which will actually make us more efficient in terms of where we target our enforcement activity. This also allows us some resources to make sure that the judiciary is more aware of the kinds of offences, the impacts on the environment, and the kinds of offences that we think will happen.

So it's proactive information. There are also additional resources for Parks Canada for enforcement.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Very good.

There's another point that I'd like to try to make absolutely crystal clear in my own mind and also for the committee. That's how this bill interrelates with the Species at Risk Act.

Do I understand correctly that the major reason, at least, that the bill does not deal with the Species at Risk Act is simply as a matter of deference to the committee's review, not wanting to second-guess what the committee might come up with?

[Cynthia Wright]

That is correct.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So if the committee, in its study of the Species at Risk Act, determined that these measures would be suitable for that act as well, from the department's point of view, would that be a manageable approach? Would there be an equivalent set of drafting that could be done for the Species at Risk Act?