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.
Chief Enforcement Officer, Department of the Environment
I understood that there were two questions.
For the first one, I would again ask Sarah to try to explain those opting-out kinds of options.
Manager, Legislative Advice Section, Department of the Environment
Sure. The minimum fines were felt to provide helpful guideposts to the courts for what could constitute an appropriate starting point for determining a fine. It's intended to achieve deterrence and denunciation. Currently, the court-imposed fines, as we expressed previously, are often not high enough to achieve these objectives. Adding the minimum will help ensure that the fines are appropriate.
There is only that one exception provided in the bill. This was felt to be important to ensure that a proportional sentence is achieved in cases where the judiciary feels the minimums would cause undue hardship.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
But given the fact that the judge has complete discretion in proposed section 273, what's the point of the minimum sentencing?
Manager, Legislative Advice Section, Department of the Environment
Again, the minimum sentences would apply in the vast majority of cases. There would have to be present those exceptional situations where the penalty would cause undue hardship in order to--
NDP
Linda Duncan NDP Edmonton Strathcona, AB
But we can't presume that, can we? We don't know how the judge will exercise his discretion.
Manager, Legislative Advice Section, Department of the Environment
While the judiciary, I understand, has discretion, the judiciary certainly is bound by what would be set out in a statute if Bill C-16 passes.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Ms. Cosgrove, I agree, except that proposed section 273 gives the judges complete discretion to override the minimum, does it not?
Manager, Legislative Advice Section, Department of the Environment
If the test can be met, the judge can override, but again, there is a specific test there and reasons must be provided by the judge--
NDP
Linda Duncan NDP Edmonton Strathcona, AB
So it's necessary to add that in. Is that not generally understood in the cases? Was it felt necessary to require the court to consider that factor? Is that why it was added in?
Manager, Legislative Advice Section, Department of the Environment
It was in order to ensure in exceptional circumstances that the sentence would be proportional. If there were minimums, again, in not the majority of situations, it would result in an unproportional sentence.
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
I may be able to help a bit.
I think I would add that the term “undue hardship” would be defined by the courts over time through jurisprudence. Certainly the words themselves, their plain meaning, one would think would denote an exceptional circumstance and not a run-of-the-mill case. The test of undueness is by definition something that's outside of the ordinary. The requirement to provide reasons is one that I think is helpful as well, because it will allow the prosecutors to review the judge's reasons with a view to determining if the crown feels the judge has committed an error and to raising the issue with an appellate court.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Ms. Proulx, can you explain this to me? I'm just trying to make sense of all these provisions, and I'm sure the court and the prosecutors are doing this when they get to court. We have the exception in proposed section 273, but the government, in its wisdom, in the bill under proposed section 272.3, has already differentiated between big corporations and small revenue corporations. So isn't there a multiplicity of factors here complicating...? Isn't the court already directed to treat a small revenue corporation in a lesser way anyway, with a lesser penalty?
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
I'm going to ask Ms. Eacott if she wants to deal with that question.
Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
The bill does provide different minimums and maximums. One is for individuals, one is for small revenue corporations under $5 million, and the other is a catch-all for everyone else. So there is already some consideration in the bill for ensuring, for instance, for a smaller company or an individual, that the minimums you're exposed to are lower .
Conservative
The Chair Conservative James Bezan
The time has expired.
Mr. Woodworth, I believe you're kicking off.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Yes, thank you very much, and maybe I'll just pursue the very last issue that was being discussed for continuity.
Thank you for being here with us this morning.
Would it be equally accurate to say, in fact, that the differential fines are not necessarily looking in the telescope through one end and allowing lower fines for individuals and small corporations, but are actually allowing higher fines for larger corporations? Would that be an accurate way of looking at it also?
Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
Yes, I would definitely say that would be an accurate way of looking at it.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Otherwise, in fact, if you had to impose a fine that was uniform for all persons, your minimums might have to be quite low to consider the case of an individual, for example, as distinct from a large multinational corporation. Correct?
Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
That's correct.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
So what we're really doing is allowing the opportunity for larger fines by differentiating. Correct?
Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
I don't know the exact reason, but from a prosecutor's perspective, that's what would result.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I've practised law for almost 30 years, both prosecuting and defence, and every time I've seen a provision for a minimum fine, I have seen a provision for an exemption due to undue hardship, just based on the Canadian legal principle that we don't want to grind people into the dust. I don't know if you have ever seen a minimum fine provision that did not contain a potential exemption for undue hardship.
Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
I can answer that in reference, I think, to the Excise Act. It contains a number of mandatory minimum penalties in relation to tobacco smuggling. Those penalties were subject to constitutional challenge on the basis that they constituted cruel and unusual punishment. In a case where a court does find the punishment to be cruel and unusual in the absence of an undue hardship provision, a court would likely carve out a constitutional exemption.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
That's about what I would have expected.
Also, when this undue hardship principle is applied, am I correct that judges simply can't go with their heart, as it were, but have to apply judicial principles and they have to stick with the necessity of finding an actual hardship? They can't just draw something out of thin air.