Environment Committee on March 31st, 2009

[David McGuinty, Liberal, Ottawa South, ON]

Madame Proulx, if the court is seized with a prosecution matter, would your prosecutors not be looking for the full panoply of potential evidence to table in court? For example, if a major corporation is pursuing an environmental assessment process, putting forward its own record in terms of environmental performance, wouldn't the court be interested in hearing that kind of broadened evidence about the performance of a corporation?

[Chantal Proulx]

Certainly each case is different.

I'll ask Mrs. Eacott to comment, as a prosecutor on the front line.

[Erin Eacott]

It depends on the case and what sort of evidence they're going to bring forward and whether or not it's relevant to the actual circumstances of the offence. Lots of times corporations want to show they're good corporate citizens and bring all their history of all the good things they've done, including environmental assessment, but they're not necessarily relevant to that offence at hand. They might be somewhat relevant from a sentencing perspective as to what the total penalty would be. But I've had instances where there have been ongoing environmental assessments at the same time as a prosecution is going forward, and from my perspective, other than the fact that there might be a few tidbits of factual evidence related to the offence, a lot of that information isn't relevant.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you.

[The Chair, Conservative, James Bezan]

Before I turn it over to Mr. Jean, one of the things we discussed at last week's meeting was a concern about the safety of our enforcement officers. As they are going to be policing with these more expensive fines, and especially if you take a look at what's happening possibly in poaching in the wildlife area and people being out there with high-powered rifles, there is concern about our park officers as well as wildlife officers being in danger. One of the reasons we wanted to have enforcement officers here was to talk about the safety aspect. And I just want to get some comments on whether there is a concern from the officers themselves and whether or not they have the tools and equipment to properly protect themselves in those situations.

[Albin Tremblay]

A poacher is quite different. Maybe I could ask my two colleagues to elaborate on that, starting with you, Kevin, on the environmental side.

[Kevin Buerfeind]

Of course there's always a concern of potential risk to the enforcement officer when you're dealing with law enforcement of any type. Fortunately, we have a lot of training. We do a lot of risk analysis. Whenever we embark on any type of activity, we'll do a complete risk assessment of what might happen in any type of activity or event. So I feel we're well trained and well prepared to respond, and the fact that we're proactive in looking into situations in advance of potential concerns, I feel we're in good shape.

[The Chair, Conservative, James Bezan]

And on the wildlife side?

[Gerry Brunet]

I think Kevin has said it very well. As Mr. Tremblay said, we are a little different. Our clients are different. On the wildlife side, we do deal with armed hunters and so on, but we are issued the tools. We have all the use-of-force tools similar to other peace and police officers out there.

So I concur with what Kevin said. We're in good shape.

[The Chair, Conservative, James Bezan]

I wanted to get one further comment from Madam Cosgrove on the issue of undue financial hardship.

We've already framed it that this is needed because we have to be compliant constitutionally in the bill. Are there other examples of bills and legislation--from Health Canada, or the Canadian Food Inspection Agency--that use the same type of wording to provide those, I guess, exemptions?

[Sarah Cosgrove]

I personally am not familiar with any examples that I could provide you with today.

[The Chair, Conservative, James Bezan]

Okay. Maybe we can get some examples around why we've done it, why it's important, and what other Canadian legislation has the same criteria.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

I actually practised in this area, in northern Alberta, for a period of time. I had an opportunity to represent some 16 of the 23 Wildlife Act offences that were prosecuted in 2001 in Fort McMurray and area. So I do agree with the department's analysis that if the undue hardship clause were not in there, the minimum fine provision would probably be struck down under the Constitution. I think it's absolutely necessary to have that in there.

I'm interested specifically in this part. It seems that indeed the deviation from the guidelines is very similar to the child support guidelines that have been successful. I know that's not your expertise as far as practising goes, but the child support guidelines, when they came in, I think in 1999, were very successful. Judges did not deviate from the child support guidelines, much the same as this, because they had to give written reasons. Of course, the written reasons, if they were not sufficient, would be appealed.

It appears to me that, just as a matter of practice, it would be extremely unlikely that any judge would deviate from the guidelines--unless, of course, there were tremendously extenuating circumstances to do so, and then there would be justification to do that.

My interest has to do with the cost of doing business for large corporations. We've seen this on an ongoing basis with ballast discharge in the Great Lakes and, in fact, in our oceans and other areas. Can you describe, just in general, the economics of the kinds of cases where large corporations will continue to pay fines rather than comply because it's easier for them to do so by way of the cost of doing business? Is it possible, do you think, under this particular act, with these amendments, that corporations would actually do that?

[Sarah Cosgrove]

I'm sorry, that corporations would continue...?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

To not comply with the act because it's cheaper to not comply and just pay the fine.

[Sarah Cosgrove]

Our proposals include all of these measures to ensure that at time of sentencing the judge comes up with the sentence that does the exact opposite. It ensures that this is beyond the cost of doing business.

In addition to providing guideposts to instruct an appropriate sentence, there are additional powers that the court can rely on in coming up with creative sentencing. There's also a mandatory order that would have to take place if the crown were successful in showing that the offender profited from the offence. There would be an order to receive, in addition to the fine, that amount of profit.

So I think the bill addresses that particular concern.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Absolutely. I just wanted to draw attention to it, because I do think in this bill the department has been very successful in setting out an end to that particular practice by large corporations.

In fact, I took note of the provision about notice to shareholders. I thought that was an excellent provision in terms of some of the investments being made. I was wondering if you could describe that a little bit more.

[Sarah Cosgrove]

The bill also includes a mandatory provision requiring convicted corporations to report to their shareholders. It's an order we put in place requiring that corporations report to their shareholders on the conviction and the details of the conviction.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Is it the belief of the department that the threat of that kind of notice, especially to shareholders, would bring compliance prior to the activity being undertaken, or prior to any kind of accident?

[Sarah Cosgrove]

Absolutely. We're quite certain that corporations monitor closely what legal requirements they're obliged to pursue. They do look to the penalty provisions associated with those. They keep those in mind.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Great.

Do you agree that the bill's focus on restoration and compensation is adequate in the circumstances?

[Sarah Cosgrove]

I do believe, yes, that the bill's focus on compensation is...many of these provisions are new. Some of the provisions codify and provide additional weight to developments in the common law, and this is meant to bring the sentences up.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

And to make sure the sentences are consistently applied?

[Sarah Cosgrove]

Absolutely.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you.

Those are all my questions, Mr. Chair.