Environment Committee on March 31st, 2009

[Chantal Proulx]

It is up to a defendant to determine what arguments they want to raise before a court. It's difficult to estimate the number of people, or other types of individuals, who may wish to raise this, but I can tell you that on its plain meaning it appears to be a clause intended to be used in exceptional circumstances.

[Jeff Watson, Conservative, Essex, ON]

My question wasn't geared toward how many people would use it. The question was more to do with the outcome, whether you see something less than minimum fines becoming routine. That is what I was getting at.

[Chantal Proulx]

If and when the clause is raised by an individual, it would be fair to say that it would be the crown's position that it should be available only in exceptional circumstances. If courts see it differently, then that would be an argument to be advanced by the crown before appeal courts.

[Jeff Watson, Conservative, Essex, ON]

Madam Proulx, in your opening statement you raised the issue of a constitutional challenge. I don't know if that was related to something specific, or whether you meant that generally speaking you expected constitutional challenges to result from this bill. Would you care to elaborate on where you see potential constitutional challenges?

[Chantal Proulx]

You're correct in saying that I wasn't specific. I alluded to constitutional challenges in a general sense. When one sees mandatory minimum penalties, as a prosecutor, one inevitably turns one's mind to possible constitutional challenges.

[Erin Eacott]

There's nothing specific that we thought might cause a constitutional challenge, but when you have a new bill and you have minimums, there's a potential.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

That leads right to my question. I want to try to drive a nail into the coffin on this.

As I understood you to say, a mandatory penalty without an undue hardship exemption clause can be found, or has in some cases been found, to be unconstitutional. Is that correct?

[Chantal Proulx]

That's correct. I think it's more vulnerable.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So by allowing the exemption, we are in effect trying to immunize the bill against a constitutional challenge. We're trying to make the bill Constitution and charter compliant. Correct?

[Chantal Proulx]

I think so.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

There was questioning on the last day about the issue of judges having the power only to recommend, rather than to order, payments to organizations. I'd like to hear from Ms. Cosgrove or Ms. Tingley about whether there have been problems in the past with judges ordering payments to specific organizations.

[Sarah Cosgrove]

We should start by mentioning that the policy objective behind the amendment proposed in Bill C-16 is not to remove discretion from the judge; rather, it is meant to add a level of accountability to the process of allocation of funds. It's our intention to amend the EDF policy once the bill comes into force. This would be to ensure that where a judge has made a recommendation, priority would be given to the EDF funds directed towards that organization, pending its ability to demonstrate that it can spend the money on the intended project and in the intended timeframe.

There have been rare instances in which organizations have become insolvent or are incapable of spending the funding. When that situation arises, the funds sit in limbo. Although that doesn't happen in the majority of cases, the bill's amendments were aimed at ensuring that the funds would be spent on environmental restoration.

[The Chair, Conservative, James Bezan]

Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

Thanks, Mr. Chair.

Ms. Tingley or Chantal Proulx, which jurisdictions would you look to most closely to come up with best practices for this environmental enforcement package?

[Sarah Cosgrove]

We looked at multiple jurisdictions, specifically in respect of a fine scheme and the amounts proposed for minimums and maximums. British Columbia and Ontario were looked at, and the maximums we're proposing reflect the maximums in several statutes found in Ontario.

[David McGuinty, Liberal, Ottawa South, ON]

What about other nations—the United States, Australia, Japan, Germany?

[Sarah Cosgrove]

We looked to other jurisdictions, but in the end we found that, given the different legal systems, the Canadian jurisdictions were the most appropriate for our examples.

[David McGuinty, Liberal, Ottawa South, ON]

What evidence do you have for the notion that mandatory minimums actually deter environmental offences?

[Sarah Cosgrove]

There is a substantial amount of commentary pointing out that in general the higher the penalty, the greater the deterrent. There are studies that demonstrate that our current penalties are inadequate. The minimums proposed through Bill C-16 are part of an overall scheme aimed at giving guideposts to the judiciary and signalling that higher penalties are more appropriate for these offences. They're to be read in conjunction with aggravating factors, purpose clauses, and first principles that serve to establish the need for raising penalty amounts.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Chair, I wonder if we could ask the witnesses to produce whatever evidence they have--not commentaries--to substantiate the notion that mandatory minimums have a deterrent effect in other provincial jurisdictions, including Ontario and B.C. I think that would be helpful for all committee members.

Could I go to a second question? Can anyone in the enforcement business explain to me the relationship between environmental enforcement and environmental assessment?

[Albin Tremblay]

I can start and maybe Kevin can add to it.

They are two very different things. Environmental assessment is a process pre-project to evaluate the consequences. Environmental enforcement is to enforce regulations.

[David McGuinty, Liberal, Ottawa South, ON]

Do you look to environmental assessment processes for evidence or information about different proponents, companies, actors in Canadian society, evidence they may put forward in terms of their practices, the way they approach projects? Would you be going into that kind of documentation to build the prosecution case, for example?

[Kevin Buerfeind, Acting Regional Director, Environmental Enforcement Division, Atlantic Region, Department of the Environment]

We will look at all the information when we're looking at prosecution cases. All information is available to us. When we're talking specifically about environmental assessment, that's of course, as Mr. Tremblay said, to assess the viability of a project with respect to environmental concerns.

When you're looking at the enforcement side of it, we're looking at all information related to what might have happened with respect to an event--maybe a spill or some sort of other violation--so of course we'll broaden our perspective to ensure we take all evidence into account.

[David McGuinty, Liberal, Ottawa South, ON]

So the fact that the government is now, for example, removing environmental assessment for virtually every project under $10 million in this country, except for projects that take place inside national parks, park reserves, national historic sites, or historic canals, would have a bearing on environmental enforcement, wouldn't it?

[Kevin Buerfeind]

Unfortunately, I can't answer your question. I'm not an expert on environmental assessment. I can only speak from the law enforcement capacity and how we do our business with regard to investigating offences.