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.

On the agenda

MPs speaking

Also speaking

Albin Tremblay  Chief Enforcement Officer, Department of the Environment
Linda Tingley  Senior Counsel, Department of Justice
Darlene Upton  Director, Law Enforcement Branch, Parks Canada Agency
Chantal Proulx  Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada
Erin Eacott  Counsel, Edmonton Regional Office, Public Prosecution Service of Canada
Sarah Cosgrove  Manager, Legislative Advice Section, Department of the Environment
Gerry Brunet  Assistant Director, Wildlife, Ontario Region, Department of the Environment
Kevin Buerfeind  Acting Regional Director, Environmental Enforcement Division, Atlantic Region, Department of the Environment
Linda McCaffrey  Director, Environmental Law Clinic, Ecojustice Canada

9:45 a.m.

Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada

Chantal Proulx

Again, as I said, the expression will be defined through common law over time, but on its plain meaning, the words “undue hardship” certainly denote something out of the ordinary.

9:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Am I right that we would try to say that if a judge did do something that didn't adhere to judicial principles, the prosecution would at least be allowed, if not inclined, to appeal the decision that misapplied that provision? Is that correct?

9:45 a.m.

Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada

Chantal Proulx

It would certainly have weight.

9:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you.

I also have some questions for Mr. Tremblay.

You have a number of other partners--international, federal, and provincial. It is unclear to me whether the personnel of other agencies have the opportunity to enforce our federal laws. Can you assist me with that?

9:45 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

It's possible that officers from other agencies, Fisheries and Oceans in particular, and our own officers may also be designated as fisheries officers, but that's done to a limited degree.

Maybe I can ask Gerry or Kevin, on each of their sides, about when those situations happen.

9:45 a.m.

Gerry Brunet Assistant Director, Wildlife, Ontario Region, Department of the Environment

Sure.

I'm with the wildlife enforcement side in the province of Ontario, so certainly what I see is that Ontario provincial EOs are cross-appointed to do the Migratory Birds Convention Act. Likewise, we are cross-appointed to enforce Ontario's Fish and Wildlife Conservation Act. That is a common denominator across the country in most provincial and territorial jurisdictions under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. There are certain provincial and territorial departments that are cross-appointed to conduct investigations. Mostly they deal with interprovincial types of violations under WAPPRIITA.

9:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Generally, there are more boots on the ground than simply the 315 that answer directly to our enforcement officer.

9:45 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

That's one way of looking at it, indeed.

9:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Merci.

Do the provincial officers and others have any opportunity to train in or be informed of the federal policies regarding enforcement? How does that work?

9:45 a.m.

Assistant Director, Wildlife, Ontario Region, Department of the Environment

Gerry Brunet

Again, on the wildlife side, I didn't mention that Canada Border Services Agency is another key partner under WAPPRIITA, and we have entered into MOUs with their investigative side and have trained their investigators under WAPPRIITA. Yes, our inspectors or our officers will go out with CBSA inspectors and train them on the things to look for concerning endangered species coming into the country. Likewise, provincial and territorial agencies are trained in migratory bird enforcement and things of that nature.

9:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you.

9:45 a.m.

Conservative

The Chair Conservative James Bezan

We'll go to Mr. Trudeau.

9:45 a.m.

Liberal

Justin Trudeau Liberal Papineau, QC

Thank you.

We're talking about this undue hardship concern. I will continue with this in a little bit.

If one looks exactly at the fines, for an individual the minimum fine on a summary conviction is $5,000, but only for the most serious offences. For all other types of offences there is no minimum fine. I understand the importance of establishing parameters to help judges with their sentencing, both the minimum and the maximum, but $5,000 for a most serious offence toward an individual.... I think there is a desire by the government to demonstrate with this bill that we, as a country, are going to be tough on environmental crime. With the example Mr. Woodworth brought up, the fact that there has been and is a mechanism for calling for cruel and unusual punishment if indeed there is something of an extraordinary nature.... Why temper a minimum that seems reasonable for something that as a most serious environmental offence is $5,000? Why is there even a need to temper that?

9:50 a.m.

Manager, Legislative Advice Section, Department of the Environment

Sarah Cosgrove

I should start by pointing out that the minimum penalties in the bill are part of a larger scheme. The bill proposes the minimums and maximums. It is important to point out that the bill adds a purpose clause to each of the statutes. It describes the purpose of sentencing, and in addition, the bill, as a principle of sentencing, points to these aggravating factors. The judge must consider aggravating factors, including the list provided in the bill, when completing a sentence.

The judiciary and our prosecutors can explain this in greater detail better than I can, but the judiciary, traditionally under common law, takes into account a number of factors in determining a sentence. The minimums exist. The entire scheme will be considered by a judge when considering a sentence. The submissions of our prosecutors will be considered as well. It is important that there be an out in the rare situation of undue hardship, when the minimum wouldn't actually reflect an appropriate fine for a particular offender, given undue hardship.

9:50 a.m.

Liberal

Justin Trudeau Liberal Papineau, QC

But we have an out already, within the “cruel and unusual” constitutional challenge, when it's really pushed.

The other issue I have is that much was made of the fact that it is up to the agent to determine when there is an infraction and then to apply the law.

How does the effect of the PPSC coming in to decide whether it's carried forward, based on whether we can get a conviction or not, temper the impact of an agent seeing infringement of the law and wanting to apply a fine or call it before the courts, and then being told that a conviction can't be gotten on that? How does this reduce the effectiveness of the environmental enforcement law?

9:50 a.m.

Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada

Chantal Proulx

The test that the PPSC applies when it decides whether or not to go forward with a prosecution has been the same test for quite some time, so in fact it's not new. The test is applied in the majority of provinces, after charges are laid, to ensure that the continuation of a prosecution—because the charge has already been laid—is reasonable both in terms of the evidence and in terms of the public interest. This is not new.

Erin can provide details about the pre-charge provinces, but the officers, should they decide to exercise their discretion in favour of a prosecution, will contact the crown and request authorization to lay a charge. Erin can provide details on that.

9:50 a.m.

Liberal

Justin Trudeau Liberal Papineau, QC

So in fact the inspectors do not have the ability to simply apply the law in these pre-charge provinces, which include Quebec, Ontario—you know, the provinces with the larger populations—

9:50 a.m.

Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada

Chantal Proulx

And New Brunswick, B.C., and Alberta.

9:50 a.m.

Liberal

Justin Trudeau Liberal Papineau, QC

Okay. So the big provinces actually do not get to choose when to apply the law. They have to check with prosecutors to see whether they think they can get a conviction. Is that right?

9:50 a.m.

Counsel, Edmonton Regional Office, Public Prosecution Service of Canada

Erin Eacott

If I may, I'll answer that question.

We work in cooperation with the investigators during their investigations to answer any questions they have. Once their investigation is complete, they will send us a brief of all of their evidence, which we will review. They'll provide us a recommendation. Sometimes the recommendation will be that they feel it should proceed to prosecution; sometimes it will be that they're not sure and could we please clarify for them; or that they don't think so, but maybe we will. We review all of that evidence and then we, as the PPSC, make a determination whether, based on the test, which you've heard, the charge should proceed. We then let the investigators know, and then they go ahead and lay the charge.

9:50 a.m.

Liberal

Justin Trudeau Liberal Papineau, QC

If it doesn't proceed, can it be settled? Is it black and white, or can you create a settlement or recommend that we try to—

9:50 a.m.

Counsel, Edmonton Regional Office, Public Prosecution Service of Canada

Erin Eacott

It's more black and white.

9:50 a.m.

Acting Deputy Director of Public Prosecutions, Regulatory and Economic Prosecutions Branch, Public Prosecution Service of Canada

Chantal Proulx

Let me add that at the end of the day, in the pre-charge and the post-charge provinces the result will be the same, because the same brief will come to the crown in the post-charge provinces and the same evaluation will be made.

9:50 a.m.

Conservative

The Chair Conservative James Bezan

Mr. Braid, please.

March 31st, 2009 / 9:50 a.m.

Conservative

Peter Braid Conservative Kitchener—Waterloo, ON

Thank you to all of our witnesses for appearing this morning, and for your great presentations.

I'll start with a similar conversation thread to Mr. Trudeau's, with respect to the PPSC.

In these scenarios where the enforcement officer makes the charge, and then your office comes in and the prosecutor determines whether or not there are merits with the case and it proceeds or not, in what percentage of cases is it determined by the prosecuting official that it not proceed, and what factors are taken into consideration?