Private prosecution is essential. By way of example, Ecojustice, with two lawyers for the whole province of Alberta and 12 for all of Canada, was able to prosecute Suncor for the dead ducks. It took Canada and Alberta, with all its massive resources, month and months to decide that they indeed would do it themselves.
The problem is that Ecojustice is the only NGO that prosecutes, that sues the government, that sues polluters. We are the only litigation group among the NGOs. All the others focus on law reform. As I say, of us, there are 12 for all of Canada. There could be more of us, and there would be more, if we could prosecute and get all or a portion of the fine. Under this legislation, we can. The court actually has a right to recommend payment to the prosecutor. The court should have the right to decide that the fine will go to a private prosecutor as opposed to this environmental damages fund, which is a notional fund. It doesn't exist except as an accounting entry. The money isn't there. If that could be done, then you have money to fund another prosecution. Prosecutions are expensive. You have to take samples. You have to have them analyzed. It can cost thousands of dollars just in analytical bills. The government needs all the help it can get on prosecutions.
However, there is a terrible problem, and it could be addressed in this bill. The problem is the power of the attorneys general across Canada to stay prosecutions. In Ontario, when there are private prosecutions, the attorney general looks at the prosecution. Sometimes it will take it over and prosecute to a conclusion; other times the attorney general will simply let it proceed, having satisfied itself that it is a proper prosecution.
In B.C., the practice of the attorney general verges on scandalous. Back in 1997 there was a decision of the B.C. Court of Appeal. Ecojustice's predecessor, the Sierra Legal Defence Fund, prosecuted the City of Vancouver for discharging raw sewage into the ocean. The court said, “Oh, gosh, you've prosecuted them five times already. They're still doing it. On each occasion the attorney general stayed the prosecution, and now you're saying we should not permit this stay. But sorry, we can't interfere, as courts, with that exercise of discretion unless we had evidence of flagrant impropriety or corruption.”
Well, fast forward to 2007. Ecojustice laid charges under the Fisheries Act, I believe, in respect to Vancouver still discharging raw sewage into the ocean. And guess what the Attorney General of B.C. did? He stayed the charges.
Between 1997 and 2007, provisions were introduced in the Fisheries Act where a private prospector cannot just go out and lay a charge. There has to be an evidentiary hearing, to which the defendant and the attorney general are parties, and the private prosecutor has to satisfy a justice of the peace at that hearing that it is a prosecution that can properly go forward, that there is a strong evidentiary basis, and that there is a strong legal basis. There is a procedure in that statute to make sure there are no wildcat nuisance prosecutions. And still, it was stayed.
You need legislation that prevents that. I think that legislation can be passed. I'm not legislative counsel, but the wildcat activity is all on the side of the attorneys general. What you need is a constraint on the absolute untrammelled discretion of attorneys general to stay prosecutions. The principles on which you should be acting are simply that if the attorney general wants to stay a prosecution, he can do so, but he has to provide reasons and he has to demonstrate in those reasons that the stay is in the public interest.