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.
10:50 a.m.
Conservative
10:50 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
Ms. McCaffrey, thank you very much for your contribution here today. I found some of what you have had to say to be helpful. I have found some of what you have had to say to be inviting challenge, if I may put it that way.
On the last point, I rather suspect, although my knowledge of French is not that great, that the issues you've raised about those words may be translation issues, but I'm sure somebody will look into that, and I appreciate your bringing them to our attention.
The thing I found most difficult to accept in your submissions was the suggestion that if a ship were hijacked, the master would be liable for acts of murder committed by the hijackers. Do I recall correctly that you worked for some 15 years in the province of Ontario as a prosecutor, first of all?
10:50 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
So I find it difficult to believe that someone with your experience would suggest that a statute would make anyone liable for an involuntary action. I'm thinking of some shipowner or master being tied up in the corner while others are running about committing mayhem—
10:50 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
That's what it says.
10:50 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
—and I'm surprised that you would suggest that any criminal or quasi-criminal statute would result in criminal or quasi-criminal liability for, in effect, involuntary actions. Is that really what you're telling us?
10:55 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
That's what it appears to say. It seems to create an absolute liability, and I think it's unconstitutional. It would actually have to be a pollution offence, but it could easily happen that there could be an oil spill in the course of a hijacking or some sort of a spill of nasty material into an ocean or out of a plane.
10:55 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
So your take on it is that an absolute liability offence, in fact, makes someone liable for the acts of others in this case?
10:55 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
Well, in the absence of any defence, yes. That's what strict liability is. Strict liability is where you have defences like due diligence and officially induced error.
10:55 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I thought for a while you had more faith in judges than I do, but I think I have enough faith in the judges to assume they wouldn't impose liability for involuntary acts.
But be that as it may, the other question I wanted to ask you is whether you've reviewed the existing fines that are being handed down and environmental offences under the Migratory Birds Convention Act and other acts we're amending here, and are you satisfied that the courts are being tough enough in the fines they're handing down right now?
10:55 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
I don't know whether the courts are being tough enough in the fines they're handing down now, but the real problem is the problem that you don't see. You've created liability for officers, directors, employees, people like that. I'll tell you what happens; you probably know anyway. A prosecutor will charge the corporation—an officer, a director, an employee, whoever. They'll lay charges against a number of individuals as well as against the corporation. Then it comes time to plea bargain. Then what you want to do is get your individual clients off and let the corporation take the rap, because these people don't want convictions against their names personally. Prosecutors, being busy people with many cases to prosecute, want to make as many plea bargains as they can. The most common plea bargain is that you withdraw the charges against the individuals, the corporation takes the rap, and you negotiate a penalty for that corporation.
You might have had four penalties if everybody had been prosecuted to the conclusion. You'd have a greater—
10:55 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I didn't want to interrupt you, because I've chastised my colleagues for interrupting, but my question was whether you're satisfied with the penalties that judges are handing down under the existing penalty provisions of these various acts.
I might also ask you whether you think the existence of mandatory minimums might up the bargaining power of the prosecutors in those plea bargains and whether we might see some stiffer penalties as a result in those circumstances.
10:55 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
I think there's some merit to the mandatory minimums. They do raise the bar.
10:55 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
As for the judges, do you think you're satisfied with what judges are doing in penalizing these offences?
10:55 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
In general, yes. When you read the reasons for a judgment, it usually makes sense, but a person may not believe or accept that the findings of fact were as comprehensive as they should have been, and that of course would make a difference in the sentencing.
11 a.m.
Conservative
11 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Do you think it's legitimate for a legislator to put out legislation that sends the message to judges that they ought to treat certain offences, such as environmental offences, more seriously? Do you think that's a legitimate legislative function and that it's not going to demean judges if we do it?
11 a.m.
Director, Environmental Law Clinic, Ecojustice Canada
No, I think judges have to know that the legislature takes it very seriously. Certainly they will know that by the maximums, but I'm not saying that minimums are necessarily a bad thing.
11 a.m.
Conservative
The Chair Conservative James Bezan
Thank you.
I want to thank you, Ms. McCaffrey, for appearing.
Mr. McGuinty has a point.
11 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Mr. Chair, could the clerk follow up with the officials of the government to get the evidentiary documents I'd asked for?
Ms. McCaffrey, if you'd be kind enough to do it while you're still here, to reduce to writing what you have would be very helpful, in anticipation of the proposed timelines we have to take up on Thursday.
11 a.m.
Conservative
The Chair Conservative James Bezan
That sounds good. We'll be talking about timelines and stuff like that on Thursday. I'll follow up with the minister.
With that, I'll entertain a motion to adjourn.
11 a.m.
An hon. member
I so move.