Evidence of meeting #12 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 court.
A recording is available from Parliament.
9:25 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
All right. That was sort of the purpose of my question.
Go ahead, we're talking about the Atlantic.
9:25 a.m.
Chief Enforcement Officer, Department of the Environment
I'd like to point out that Quebec is a special case. An administrative agreement is in place with the province, as a result of which there has been a single window for the entire pulp and paper sector since 1994.
9:25 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
So that falls to the provincial inspectors from Quebec?
9:25 a.m.
Chief Enforcement Officer, Department of the Environment
No, it's a single window. Instead of submitting two different sets of information, the business provides the information once and it's made accessible to both governments. Each of the governments retains its own responsibility for enforcing the act.
9:25 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
It's somewhat like in the case of the oil sands and retention ponds. They seem to say that, in Alberta, it's the province that gathers the data, which is provided by the business.
Is this the same kind of system?
9:25 a.m.
Chief Enforcement Officer, Department of the Environment
I would say it's different. As you mentioned, in Quebec, businesses provide the same set of information simultaneously to the two enforcement systems, that is to say the federal and provincial systems. We receive the same information as the Quebec government. We have an agreement with the Quebec government, which conducts control inspections every year. Inspectors go to each of the mills to check the validity of the information provided to us.
9:25 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
They go to the mills. However, if I correctly understood the evidence we recently received as part of our oil sands study, it appears that the inspectors, both those from the province of Alberta and those from the federal government, do not really go to the oil sands development sites.
Isn't this a double standard?
9:30 a.m.
Chief Enforcement Officer, Department of the Environment
No, I wouldn't say that's the case. The ways of doing things vary with the specific nature of the agreements, the regulations that are implemented across the country.
9:30 a.m.
Conservative
9:30 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Thank you very much, Mr. Chairman.
Thanks to all the witnesses for appearing here this morning.
Ms. Proulx, I would have liked to have a written document. That helps us formulate our questions. Perhaps you could send it to us in the next few days.
I believe you said that one consequence of the bill would be the implementation of minimum penalties. Is that correct?
9:30 a.m.
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
That's correct.
9:30 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Do you think that, in the case of violations, the act contains loopholes with regard to the imposition of minimum penalties?
9:30 a.m.
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
The minimum penalties are provided for certain violations that are considered to be most serious. Some provisions of the act enable certain individuals to ask a court not to impose the penalty.
I'll hand over to Ms. Eacott, who will provide you with details on that subject.
9:30 a.m.
Erin Eacott Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
As Ms. Proulx stated, there are not mandatory minimum fines for all of the offences within the bill, just the more serious ones. There's also a clause that the court can use--I'll call it the undue hardship clause--if they wish to go below the minimum fine because they feel it would be undue hardship to the particular accused. They may do so and provide reasons for going below that minimum.
9:30 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
I'm not a lawyer, but I've taken the trouble to reread the act. It's precisely on this subject that I'd like to know the opinion of Justice Canada and, among others, that of the Public Prosecution Service.
The new section 50.6 provides as follows:
50.6 The court may impose a fine that is less than a minimum amount provided for in section 50 or 50.3, as the case may be, if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those sections.
Does that mean that, under the act, these minimum fines that are being increased, but that will nevertheless be very small, could be avoided by the offender? A loophole in the act in fact enables the offender to do so where he can show that the fine, even if it is very small, would cause him undue financial hardship. Isn't section 50.6 a weak link, a loophole for polluters?
9:30 a.m.
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
In the circumstances, I would prefer to turn to my colleagues from the Department of Justice. They will explain to you the underlying reason for that.
9:30 a.m.
Sarah Cosgrove Manager, Legislative Advice Section, Department of the Environment
The rationale behind including that provision was to ensure that there wouldn't be undue hardship in the allocation of fines. There are certainly situations. Our fine structure specifies different categories--individuals, small corporations, and then others. In each of those categories there's a wide range of individuals or corporations that could be charged. In the situation of quite a small business, it's traditional for the judiciary to consider many factors and ensure that they're not putting a sentence in place that would cause undue hardship. This provision itself states quite clearly that undue hardship would have to be proven, and that's quite a hurdle. In addition, the judge would have to provide reasons for that in the event that clause is relied on.
9:30 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
There are small offenders, but the lamentable incidents associated with Irving come to mind, perhaps because this is the anniversary. I'd like to know how Justice Canada defines what constitutes undue financial hardship for an offender.
9:30 a.m.
Manager, Legislative Advice Section, Department of the Environment
My understanding is that there is case law, and the judiciary would make that determination, but the language chosen in the provision was meant to ensure that the loophole--the hurdle--was not an easy one to meet and only would be met in the case of true excessive or undue hardship.
9:35 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
I understand, but I would like to know what undue financial hardship is in Justice Canada's view. Those terms weren't used by chance. Where do they come from? What is their rationale? What is undue hardship for Mr. Ouellet may not be for Bernard Bigras or Mr. Trudeau. What is undue financial hardship? Are financial statements examined?
9:35 a.m.
Senior Counsel, Department of Justice
I would think that a court would have to take that kind of evidence into consideration, but there is some discretion in the courts in determining what would be undue hardship for the particular accused in front of them at the time.
As Ms. Cosgrove pointed out, the courts are required by this provision to provide reasons, so they must have something they can actually explain on paper as to why they felt this particular accused would suffer undue hardship if the minimum penalty were imposed.
9:35 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Mr. Chairman, I see we're very far from having mandatory minimum fines, in view of section 50.6.
9:35 a.m.
Conservative
The Chair Conservative James Bezan
Merci beaucoup.
We'll continue with our questioning. I'll go to Madam Duncan for five minutes.
9:35 a.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
I want to thank the chair and the clerk for bringing forward the witnesses I requested. We have the full complement of Canadian enforcement, and I'm very happy.
Welcome to our committee. Congratulations on the great job you do.
I want to follow up a bit on the questions by my colleague from the Bloc. I'm a little bit puzzled about all of the additions in here and then the obvious throwing in of the exception to make up for the fact that there's minimum sentencing.
I'm not sure if the Department of Justice would speak to that, or Monsieur Tremblay, or if it would be Madame Proulx, but I'm a little bit puzzled about the need to add the minimum sentencing when clearly there are numerous outs, including the provisions that my colleague on the committee has raised.
My additional question on this would possibly go to the prosecution office and to the head of investigations or whoever would be bringing charges. I'm wondering if the addition of the minimum sentencing might have any negative implications for the bringing of charges, particularly where it's a continuing offence that may be going on for many months or for several years and could result in many millions of dollars in even the minimum penalty. I'm wondering if you think that will have any implications for the willingness of the department to be bringing the charges or for a prosecution to go forward.