Environment Committee on March 31st, 2009

[Chantal Proulx]

I'll speak generally in terms of all our prosecutions, because we prosecute all federal offences. I'll ask Erin to comment specifically on environmental prosecutions.

Chapter 15 of our deskbook is titled “The Decision to Prosecute”. It sets out two criteria, first as to whether there's a reasonable prospect of conviction. Under that heading, the prosecutor reviews the evidence, looks at each of the constituent elements of an offence—what acts have to have been committed, and what the level of intent has to be—looks at what evidence is available and admissible under each of those headings, and determines whether there is sufficient evidence that there is a reasonable prospect. It's not certainty, but it's more than 50%, if you like; it's a reasonable prospect.

Having done that, the prosecutor then turns to determining whether it's in the public interest for the prosecution to go forward and, under that heading, considers a number of factors that one would expect would inform the public interest—the nature of the offence, the age of the offence, the circumstances of the offender, all the circumstances of the offence—and determines whether the case should go forward.

Of the cases that are referred to us for prosecution, I wouldn't feel comfortable giving you a percentage or a number, because these things are exercises of discretion that take place in the front lines every day. Certainly we in Ottawa aren't made aware of each of the cases that a prosecutor comes to look at on a daily basis, but I would say that most cases brought to us are approved for prosecution.

Erin, please....

[Erin Eacott]

I would add to that--and it doesn't matter whether PPSC is looking at a crown brief pre-charge or after charges--that if there's a gap in the evidence and we feel it needs to be covered in order for there to be a successful prosecution, we go back to the investigators. We say that we see a problem, and we ask them to fill this gap so that we can ensure we have a reasonable prospect of conviction. It's not sort of a close-a-door-in-their-face. There's a lot of back and forth if we see that there are gaps for them to correct those problems so that the files can go ahead.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Great.

In the provinces where you're involved in the pre-charge process, what is unique about those jurisdictions that creates this different process?

[Chantal Proulx]

This is something that has evolved over time through agreements with enforcement agencies and through best practices. In some jurisdictions there is a formal arrangement, in the ones that I've mentioned, whereby there is pre-charge screening. Certainly in the province of Quebec it has been a very long-standing practice. In other jurisdictions that doesn't necessarily mean the crowns don't see the files until after the charges are laid.

Certainly there is a lot of cooperation between our prosecution service and the various enforcement agencies, including Environment Canada, Parks Canada, etc., and police services across the country. So there is that continuing contact. Oftentimes, by the time the file is actually brought to us, post-charge, the crown has in fact been involved in the case for many months. Whether or not there's a formal arrangement in place, we certainly try to get involved in potential prosecutions before charges are laid because it's a best practice. It ensures that evidence is collected in conformity with the rules of evidence and in compliance with the charter.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

I'm curious, then, with respect to these four jurisdictions. In your mind, is that a more efficient process? And are there differences with the success rate?

[Chantal Proulx]

I think that maximizing cooperation between prosecution services and investigative agencies at both the federal and provincial levels certainly should be encouraged, and it ensures, when cases come to court, not only that the evidence that has been marshalled is often better in terms of its quality and its quantity, but also better timing of the court process.

Cooperation throughout the investigation ensures, for instance, that once charges are laid we're ready to go forward with disclosure, that there aren't any delays in the court process, and that we're ready to go and proceed to trial as quickly as possible. We try to do that in all of the jurisdictions. It's a best practice, if you ask me, in terms of success rates. As prosecution services, our job is to present the evidence to the court in a firm and fair fashion for the court to make a determination. That is the definition for us of a successful prosecution, that all of the relevant evidence was brought to the court in a timely and effective fashion.

[The Chair, Conservative, James Bezan]

Thank you very much.

Monsieur Ouellet, s'il vous plaît.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Thank you, Mr. Chairman.

Thank you for coming to inform us in such large numbers.

My question is for Mr. Tremblay. Clearly you're not the ones who drafted the bill, but it is your services that will enforce it. Earlier you said that the bill would reduce repeat offences. Can you tell us how? Let's take a concrete example. As drafted, this bill will prevent the deaths of 500 birds in the oil sands.

[Albin Tremblay]

Thank you for your question.

First, I don't remember saying that the bill would increase or reduce repeat offences, but I can nevertheless answer your question.

Last week, Ms. Wright said that analyses and studies had shown that higher fines are a greater deterrent. As you mentioned, our work will be to enforce the laws and regulations resulting from these changes in a fair, equitable and uniform manner. For my part, I believe that higher fines will make alleged offenders think more and will prevent them from committing the same offences under the regulations.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Earlier I questioned the people who drafted and are introducing this bill. How is it possible that this bill strengthens enforcement while making it possible to reduce minimum fines? Do you think enforcement will be simplified?

[Albin Tremblay]

By making it possible to reduce the minimum fines?

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Yes, because there are minimum fines. But it's also possible for those fines to be reduced. Will that make your job simpler or will there be fewer prosecutions?

[Albin Tremblay]

That doesn't change the nature of our work, which is to establish the facts, assess the situation, conduct investigations and inspections and recommend the most appropriate measures for correcting the situation or preventing repeat offences.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

If that doesn't assist in enforcement, could it then be removed from the bill?

[Albin Tremblay]

As enforcement officers, we are preparing the file. In any case, the fines at issue here come into play where it is impossible to use the ultimate tool in the range of tools at our disposal, which is, as I told you in my presentation, to institute proceedings. A judge will determine that. It isn't our officers who decide on the amount of the fine or whether there will be a fine. Our work is to put the case before the court and let the justice system do what it does.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Ms. Proulx, I'm not a lawyer, but I was a court expert in Quebec for a very long time. In the acts that were brought to my attention, there was no way of avoiding the minimum fines imposed or other penalties. Would it be because there is a difference between the common law and the Civil Code of Quebec that there is a possibility in common law to reduce the fines? As the gentleman said earlier, you see that in all the acts, whereas you don't in Quebec.

[Chantal Proulx]

The criminal law in Canada is contained in a range of federal statutes. I believe that, in the absence of a provision, within an act, that prevents someone from being released from minimum penalties by reason of undue hardship, the application would be made under the Charter. The Charter is of national application. It applies to all federal laws, and the application that would be made by such a person would be exempted from the application of an act as a result of cruel punishment.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

The purpose of my question was more to determine whether this arose because it was a matter of common law rather than of the Civil Code.

[Chantal Proulx]

I find it hard to answer your question because the Civil Code does not really apply in criminal law.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

That's part of the criminal law, not the Criminal Code.

[Chantal Proulx]

Bill C-16 is a criminal law.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Do I have a second left? No, it's over. Thank you.

[The Chair, Conservative, James Bezan]

Merci.

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Thank you.

Returning to the question of the undue hardship clause, I'm looking for an opinion from our panellists on whether they foresee this particular clause being invoked very much. In other words, is there a danger that something less than the minimum fines laid out in this legislation will become routine?

[Sarah Cosgrove]

Our rationale behind including that clause, wording it the way it's worded, and requiring the reasons to be provided was to ensure that it's not used often or inappropriately.