Environment Committee on March 31st, 2009

[The Chair, Conservative, James Bezan]

Thank you.

In the interest of time, we'll dismiss our witnesses. I want to thank you all for coming and presenting today. It was definitely a fulsome discussion, and we appreciate the input. We'll dismiss you from the table, and we'll call up our next witnesses.

While we're waiting for the table to clear, I want to remind committee members that we will be going upstairs at 11 o'clock for the tabling of the report and the lock-up with the environmental commissioner in room 237-C from 11 o'clock to 12 o'clock.

[Justin Trudeau, Liberal, Papineau, QC]

When were the invitations sent out?

[The Chair, Conservative, James Bezan]

Those invitations were sent out a couple of weeks ago. It was circulated out. So we have that at 11 o'clock.

Also, we just circulated our proposed work plan for your information. Look it through. If there are any changes, we can deal with them at Thursday's meeting. If nothing is raised, then we'll be going with this plan.

I will be attending the Liaison Committee today at one o'clock to present our budget for travel to Alberta.

Perhaps we could have Linda McCaffrey, please, from Ecojustice Canada, approach the table.

[Linda McCaffrey, Director, Environmental Law Clinic, Ecojustice Canada]

Ladies and gentlemen, I've looked at the WAPPRIITA provisions, I've looked at the administrative monetary penalties as well, and I have a lot of concerns, far more than I can tell you in five minutes. But perhaps I can hit some of the major concerns.

People have been very concerned about the small-revenue corporation and also about the financial hardship provisions. I have a little different take on those as a former prosecutor and as a sometime defence counsel. The problem with the small-revenue corporation being sentenced separately, differently, from the large corporation is an evidentiary problem. The gentlemen in green, I suspect, are not auditors and are not accountants, and they will have a lot of difficulty trying to assemble evidence to establish whether a corporation is a small-revenue corporation or a big-revenue corporation. If they are unable, because of lack of resources, to do that.... For any privately held corporation, there's nothing publicly available in the information. There are no filings with security commissions or anything like that. Even if it's a publicly traded corporation, the annual report and the quarterly reports will give you revenue figures, but they won't give you revenue figures that take you to the year immediately preceding the offence date, which is what is required in your statute.

If the statute read differently and you could look at the revenue figures in the annual report for the preceding fiscal year for that particular corporation, then you could conveniently get that evidence for purposes of sentencing for a public corporation. For a private corporation, you need an audit team. And you're going to have some trouble, because once the conviction is entered, the judge is going to say to the prosecutor that we are now going to proceed with sentencing and will ask whether to sentence this corporation as a small-revenue corporation or not. If the prosecutor says that we're proceeding as a small-revenue corporation or the opposite, the judge will ask on what evidence he or she should proceed on that basis. And if that evidence is not before the court, then the defence will pop up and say, “You cannot proceed with sentencing. Thank you, Your Honour, and thank you Madam Prosecutor. We'll see you in due course.” It will be a big embarrassment if that is not addressed and corrected before this legislation is finalized.

That is also a problem in the case of financial hardship. If you're not financing an audit team, then your prosecutor is going to get sandbagged, because every corporation will come in with some credible-looking, smooth person who will say that this will be a terrible financial hardship for them. And in the absence of any provisions for prior disclosure of the intent of the corporation to plead that section and prior disclosure of their data and some sort of opportunity to investigate, your prosecutor is going to be barefoot and embarrassed. And you'll read about it in the paper.

Anyway, that's what I wanted to say about those particular sections.

I would like to talk to you also about some of the other sentencing provisions. In general, you are really trying to micromanage the sentencing process. I don't know if that's very respectful of the judges, but there it is. Proposed subsection 291(2) says that the court can order an offender to publish details of the offence, and if the offender doesn't, the minister can publish it and recover the cost. That's not going to happen. People are not going to be following up on that. It's simply an impractical provision.

Proposed section 287.1 lists a lot of factors that the court is required, as opposed to empowered, to consider. That places a very difficult evidentiary burden on the prosecutor. The court has to consider--it has a legal obligation to consider--and therefore the prosecutor is going to have to adduce evidence on each and every one of those criteria. If it's not there, then the court can't consider it, can't carry out its statutory obligation. I don't like the way that legislation is written for that reason.

I see that you have immunity from personal liability for the people enforcing this legislation, and that's a very good idea. I see in the notes that it is supposed to be for acts done within the scope of their authority. But nowhere does it say that the immunity is limited to acts done within the scope of their authority, and that should be picked up and addressed.

I see there's also a due diligence defence here. It says there is a due diligence defence available on these enforcement provisions, and it doesn't talk about the other great common law defences in regulatory matters, the defence of reasonable mistake of fact or officially induced error. The intent is very unclear here. Does it mean that you can't plead those defences? It should be addressed.

There are a couple of very troubling provisions on the administrative monetary penalties. The first one is that the due diligence defence and reasonable mistake of fact defences are excluded. Officially induced error is not. There is no apparent principled reason for that. You are creating absolute liability. It may or may not be unconstitutional. I should let you know that in Ontario this legislation has been on the books since 1998. It was brought in as part of the common sense revolution, but there were never any regulations brought in to make it happen. From 1998 to 2005 nothing happened. In 2005 the provisions were repealed and re-enacted, and they still haven't been used. There is a way to maybe ensure that these provisions will be used. One way to do it might be to require that there be an annual report filed with the legislatures so the legislatures will know whether the administrators are actually taking advantage of that legislation.

There are a couple of troubling provisions in proposed section 9. Ships' masters and pilots are liable for violations of a crew member or any other person on board the aircraft or ship. If the ship or plane is hijacked by terrorists and they murder somebody, the pilot gets the violation. That does not make sense at all. There is also a troubling provision in proposed section 16 of the administrative monetary penalties. It gives the chief review officer the right to cancel a violation notice at any time before a request for review. That is not a transparent process, and at some point there will be questions about why a violation notice was killed. Somebody will leak something at some point. That should be addressed. Violation notices should be posted on some public register, and if there's going to be a cancellation, it should be posted on the public register with reasons therefor. That process needs to be transparent.

I've used my five minutes. I'll stop there.

[The Chair, Conservative, James Bezan]

Thank you, Madam McCaffrey.

We have 25 minutes before we need to be out of here and upstairs, so I think we'll do one round of six minutes so that we can get everybody on the books.

I also want to say that since we want to start clause-by-clause on April 23, I'd ask that all members who are proposing amendments have them in to the clerk by April 21. Please take note of the date and have them ready to be forwarded at that time.

Mr. McGuinty, you have six minutes.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you, Mr. Chair. I'd like to come back, perhaps after the meeting, to get a sense of the dates of April 21. That's very soon, given the schedules we have now and given break weeks and other work items in this agenda.

I would like to go back to Mrs. McCaffrey.

First of all, I really want to thank you for showing up today. I really want to thank you for putting all the work into this. I've counted at least 13 or 14 fundamental questions that you've raised about this bill. Were you consulted prior to this or during the process of the drafting of this legislation?

[Linda McCaffrey]

No. I got a call on Thursday, and I understand Linda Duncan recommended that I be invited. So I started looking at the legislation on Friday and again yesterday. I did put quite a bit of work into it and I hope it will be productive.

[David McGuinty, Liberal, Ottawa South, ON]

Would you be able to reduce much of what you've said into a brief for this committee to examine and to put into sequence the probative points you've made here about different parts of this legislation?

[Linda McCaffrey]

Yes, I could submit a brief, and then I could pick up some smaller items that I didn't mention.

[David McGuinty, Liberal, Ottawa South, ON]

That would be very helpful.

Could I go back to your comments about the specificity of the bill and about trying to effectively dictate to judges and the judicial process what shall be presented, what shall be decided? I put a question to officials here earlier about whether there was any evidence to substantiate, for example, that mandatory minimums actually work in any jurisdiction for environmental enforcement. I didn't really get an answer. I heard about reports, some analysis, and so on. I'd like to ask you, first of all, to just hold that thought. Give the committee some insight on your view on that.

Secondly, I think it's no secret that the government, this particular party, has had an aversion to judicial discretion since its arrival and way before its arrival, through its leader. They believe the judiciary should be clamped down upon. In your experience as a prosecutor--and you said you've done some defence work--could you help us understand the risks with that kind of approach that are inherent in this bill?

[Linda McCaffrey]

It is demeaning to the judicial process and to the judges. Sure, we all read in the newspaper about apparently wacky sentencing here and there, but very often those are urban legends. The McDonald's lawsuit where a lady spilled a cup of coffee in her lap and got millions of dollars in damages is one of the urban legends. She did spill coffee in her lap; it was boiling. They had been warned not to heat it so high and she had third-degree burns to her thighs. So the urban legend is quite misleading.

We have these urban legends on sentencing, and occasionally a court may go wrong. We have rights of appeal to address that. That's what they're for.

Judges are overwhelmingly diligent, just as legislators are overwhelmingly diligent, and they want to do justice. An individual may see it differently from a judge. Any of us may see it differently. We are all fallible human beings. But it is not respectful to the judicial process or to the individual judges to be prescriptive as opposed to empowering.

[David McGuinty, Liberal, Ottawa South, ON]

Can I ask another question? I put it to the group that was here earlier and I'm trying to understand the connection between environmental assessment requirements in this country, the evidentiary implications of environmental assessment processes. I would just assume that proponents of projects who are going through an EA process would be expected to provide quite a considerable amount of information about their organizations, about how they have conducted their affairs in the past, and about their precedent practice in other projects as proponents. If we remove, as the government is proposing or actually doing, all environmental assessments for projects under $10 million, you would not believe how prescriptive that list is, outside of parks and a few other exceptions.

[Linda McCaffrey]

No, I'm familiar with it. I've been looking at that legislation.

[David McGuinty, Liberal, Ottawa South, ON]

Is there a connection here? On the one hand, the government says it's about removing green and red tape to shovel money out the door--important stimulus money, I'm not demeaning it. On the other hand, government is now putting this very prescriptive and onerous set of environmental enforcement provisions on Canadian independent actors. I can't reconcile these two. Can you?

[Linda McCaffrey]

Well, the amendments to the Canadian Environmental Assessment Act are being reviewed by Ecojustice. Our Toronto office is taking the lead on that review. Our preliminary conclusion is that the environmental assessment act has been gutted. It has been effectively amended by regulation, and that regulation is ultra vires. Whether we will be able to institute a judicial challenge and whether we will win is another issue. Assuming there's no challenge or assuming we lose it, then because there is no adequate meaningful screening process, there will be a loss of preventive action. That will create additional food for prosecution, but it will not of itself create additional capacity in the system to prosecute.

[The Chair, Conservative, James Bezan]

To be fair to the other members, we have to keep on schedule.

Monsieur Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

The witness answered my questions in his presentation. I will give Ms. Duncan my time.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

Thank you, Ms. McCaffrey, for voluntarily taking the time to review the bill for our benefit. It's been very helpful and it will be very helpful for the clause-by-clause.

I am mostly going to let you just continue talking, because you've obviously done a lot of useful review, and the time is painfully short for witnesses in this committee. But I would like to ask you one specific question.

It's my understanding in environmental law , over the history of prosecutions, that the most valuable factor in sentencing and, in fact, the most useful powers of the court have not been the fines imposed but the innovative sentencing provisions. I'm just wondering what your comment might be. The focus of these amendments seems to be on imposing higher and higher minimum penalties, when in the courts the experience has been that for the most part, the prosecutors seek innovative sentencing.

[Linda McCaffrey]

I can tell you that the prosecutors don't. Ontario has provisions similar to your provisions--restitution orders, compliance orders. The court can order the company to take steps to prevent a recurrence of the problem. It can order restitution to a victim of pollution. Ontario has had that legislation for years and it is little used, precious little used. The reason is bureaucratic. You have compliance officers who issue orders in one part of the bureaucracy, and then you have a separate enforcement group. They don't issue orders. They're not about securing compliance that way. They're about securing compliance by charging a person and having them penalized. Those groups don't work together very well in Ontario, and I suspect they probably won't work together very well in the Government of Canada.

So the prosecution service does not bring forward evidence on which the prosecutor can ask for a compliance order or a restitution order. And again, if it's going to be restitution you have to put a price on it, right? So what is the cost to the victim or what is the ill-gotten gain? How do you price it? A compliance officer may have some idea that the company might have saved a million dollars by not installing certain pollution abatement equipment, but that information has to get over to the other side, and very often they don't have that kind of information. You'd have to hire a consultant to do an environmental audit and a pricing. Again, I don't think your enforcement services are going to have those resources. That's not the kind of training they get.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So are you then supportive of the new provision in CEPA that will give the judge only the power to recommend to the minister and then leave it to the minister to decide whether or not some action should be taken?

[Linda McCaffrey]

No, that's nonsense. The judge should have the power to act or not.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

In the opening statements by the senior enforcement officer and in his presentation, he talked about the overall need to have all the tools to actually encourage deterrence. They mentioned that they actually belonged to the International Network for Environmental Compliance and Enforcement, which I've been part of. One of the principles that have come out of that very clearly is that true deterrence is not fostered by having heavy penalties in legislation; true deterrence is fostered by the reasonable apprehension of actual prosecution and conviction.

Would you agree with that? And if that's the case, then is it perhaps equally important that we be encouraging the government to bring the cases to court, or to enable private prosecutors to bring the cases to court, to actually cause the deterrence?

[Linda McCaffrey]

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.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm just wondering, in the time left, if there are additional issues that you found in that bill that might be helpful to us in the clause-by-clause, where we were unable, as I understand, to add provisions. But we certainly can propose that provisions be struck out or amended. Is there anything additional that you have come across?

[Linda McCaffrey]

There is some creative English. People can be “jointly and severally, or solidarily, liable”. S-O-L-I-D-A-R-I-L-Y. What in the world is that? The word doesn't appear in the Canadian Oxford Dictionary. I have practised law for 40 years, and I have never heard of anyone being solidarily liable.

There is also a reference to a creature called a “mandatary”, another word that's not in the Canadian Oxford. It's not defined in CEPA. I don't know what a mandatary is. I did get some help from the clerk. He had a good French dictionary, and he guessed that it maybe was a designate. If it is a designate, it should say that. Why invent words?