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

March 31st, 2009 / 9:05 a.m.

Conservative

The Chair Conservative James Bezan

I call this meeting to order.

I apologize for getting off to a little bit of a late start. We are going to continue on with our study on Bill C-16. We have as witnesses today, for the first hour and a half, Kevin Buerfeind, Gerry Brunet, and Albin Tremblay from the Department of the Environment. They're accompanied by Sarah Cosgrove, who has been at committee already. From Parks Canada we have Darlene Upton, director of the law enforcement branch. From the Department of Justice we have Linda Tingley. From Public Prosecution Service of Canada we have Chantal Proulx, acting deputy director, and Erin Eacott.

Welcome. Please keep your opening comments brief, because we do have a lot of witnesses. We're going to do five-minute rounds just so we can get as many questions in as possible for our members.

Monsieur Tremblay, s'il vous plaît.

9:05 a.m.

Albin Tremblay Chief Enforcement Officer, Department of the Environment

I'm pleased to be here this morning to make a brief presentation to you on the Enforcement Branch. My goal is to enable you to familiarize yourselves a little with the mandate and objectives of the Enforcement Branch and with the main tools at our disposal to carry out our mandate.

In slide 2, I'll briefly say a few words to explain to you the two main components of compliance and enforcement, to assist you in understanding the roles and responsibilities of each. The entire field of enforcement is divided into two main components.

The first is compliance promotion, the purpose of which is to inform businesses of the existence of acts and regulations and their requirements to ensure they understand their obligations. That responsibility is mainly borne by our programs within Environment Canada, which develops acts and regulations. The second is enforcement. This is where the Enforcement Branch comes in, the purpose of which is to enforce acts such as those that are developed and implemented by our organization.

With respect to slide 3, I'm going to give you a bit of a general explanation of how enforcement is implemented. Once a violation is identified, the objective is to return the alleged violators to compliance in the shortest time possible and, through the measures we take, to have a deterrent effect as a result of which violators will not consider repeating the same violations. So these are two main components: quickly returning to compliance and ensuring that violations are not repeated in future.

In slide 4, we provide a map of Canada showing where our various offices are located across the country. We thought that might be useful for the committee in clearly understanding how our offices are distributed. I'd like to pay special attention to the fact that, with the new resources allocated to us, mainly under Budget 2007, we were able to open six new offices in the country. These are the green points on the colour map. We have a new office in Cranbrook, British Columbia, four new offices in the Ontario region, in Thunder Bay, Sault Ste Marie, Sarnia and North Bay, and a new office in the Quebec Region, in Harrington Harbour on the Lower North Shore. These six offices are in addition to the existing Environment Canada offices across the country.

In the next slide, on page 5, a table shows how our employees are distributed across Canada. You see the various regions making up our organization. The number of employees is shown for the two main programs, the environment and wildlife. All the figures in the table are actual and correct. I draw your attention to the fact that there are errors in some of the totals, in particular for the Ontario and Quebec regions. However, the individual elements in the table are precise and accurate. So there is a total of 315 enforcement officers across the country, one-third for wildlife and two-thirds for the environment.

In slide 6, I'll add a few words to briefly present the three main activities through which the Enforcement Branch carries out its mandate. First of all, inspections are an important tool enabling us to verify compliance with the various acts and regulations. I would particularly like to draw your attention to the fact that inspections are conducted every year under a national plan developed in cooperation with our colleagues in the programs and certain partners, including other federal departments and organizations and the provinces, to determine the most important sectors or areas where we should focus our inspections in order to make optimum use of the resources at our disposal.

The second activity is investigations, which often result from the findings of our inspections and information received from the public on situations brought to our attention or information exercises conducted within our organization.

The third activity, which is becoming increasingly important in our organization, is intelligence-gathering. We have experts who analyze and cross-reference various types of information to determine which areas of activity are likely to have areas of non-compliance and thus to channel our resources to the most significant non-compliant sectors across the country.

I would also like to draw your attention to the fact that, since 2004, the enforcement sector at Environment Canada has been integrated into a single organization, which is the Enforcement Branch, under the responsibility of a chief enforcement officer, who reports directly to the deputy minister.

The purpose of this exercise was to create an organization with a very clear line structure making it possible to take uniform, effective decisions across the country and to draw a distinction between effective enforcement and the promotion of compliance and pollution prevention, which is carried out through our department's various programs.

I'm going to add some information concerning slide 7. Last week, I told you about the policies made available to our enforcement officers to enable them to make their decisions within a well-defined framework. One of the important principles in our work is to enforce the laws in a fair, predictable and consistent manner across Canada. To do this, policies are fundamentally important. We currently have three policies in place and a fourth in development. I won't go into the details, but the last one concerns the Species at Risk Act.

These policies are central to our officers' approach and work instruments. They are used in their training and ensure that the act is enforced in a well-defined framework across the country.

Slide 8 shows some core principles guiding our officers' work. The first principle is that compliance with the acts and regulations is mandatory. No act is excepted. All acts must be complied with. The second principle, which is extremely important, is that our enforcement officers must enforce the acts in a fair, predictable and consistent manner. Third, the accent is clearly on the protection of biodiversity, prevention of damage to the environment and risks to health. These are the most important factors guiding our officers' decisions.

All alleged offences will be reviewed by our officers for the purpose of taking coherent measures in accordance with the relevant policies. Lastly, we encourage the public to inform us of any suspected violation. We are committed to taking action and following up on those statements.

On page 9, we explain how our officers' work is done with regard to investigations and inspections. As I mentioned last week, it is our enforcement officers who determine, based on available evidence, whether there are grounds to initiate an enforcement action, whatever it might be. That decision is up to them. Then, our officers have a range of tools, depending on the situation, to take the most appropriate measures commensurate with the nature of the violation or other criteria that must be considered, which I talked to you about earlier.

Lastly, for the purpose of selecting the most appropriate enforcement measure, three very important criteria are set out in the policies I referred to a little earlier. They are the nature of the violation, which concerns the severity of the harm done, the violator's intent or attempts to conceal information and the effectiveness of the measure. A little earlier, I talked about quickly returning to compliance, avoiding a repetition of the violation, and uniformity, that is to say to ensure that we take similar measures for the same violation across the country, regardless of the location or sector.

I'll briefly present the last two slides. Let's look at the table on page 10, which gives you an idea of the various tools available to our officers. They range from the warning letter to the laying of charges. I don't intend to provide a lot of details, but I will mention that a range of tools are available. One of the benefits of the new bill is that it makes it so these tools are much more standardized for all the acts and regulations that we use, which is not currently the case. Some tools are not available under certain acts. That will be corrected by the new bill.

With regard to the last slide, I can tell you that, with the number of officers at our disposal across the country, we have to work in very close cooperation with various partners, other federal agencies, provincial agencies and even internationally. Organizations cooperate with us on various files.

Thank you.

9:15 a.m.

Conservative

The Chair Conservative James Bezan

Thank you very much.

Madam Tingley, was there anything you needed to add to the presentation?

9:15 a.m.

Linda Tingley Senior Counsel, Department of Justice

No, thank you.

9:15 a.m.

Conservative

The Chair Conservative James Bezan

Ms. Upton.

9:15 a.m.

Darlene Upton Director, Law Enforcement Branch, Parks Canada Agency

No, thank you.

9:15 a.m.

Conservative

The Chair Conservative James Bezan

So moving right along, we'll go to the Public Prosecution Service of Canada. Madame Proulx, please.

9:15 a.m.

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

Thank you, Mr. Chair and honourable members. On behalf of the PPSC, I am pleased to have this opportunity to address this committee in its continuing examination of Bill C-16, the Environmental Enforcement Act.

Joining me is Erin Eacott, a front-line prosecutor with our Edmonton regional office. Ms. Eacott has considerable experience prosecuting offences under some of the statutes that would be amended by Bill C-16.

With your permission, I'd like to make a brief opening statement to frame our discussion. Since the PPSC is a new organization, I propose to provide you with a bit of background on its creation, its mandate, the services it currently provides in relation to environmental investigations and prosecutions, and how we expect Bill C-16 to impact upon current PPSC operations.

The PPSC was created on December 12, 2006 with the coming into force of the Director of Public Prosecutions Act, which forms Part 3 of the Federal Accountability Act.

The PPSC replaced the division of the Department of Justice that previously conducted federal prosecutions. The deputy head of the PPSC reports directly to the Attorney General of Canada and is known as the Director of Public Prosecutions, or DPP.

Our enabling legislation, the Director of Public Prosecutions Act, outlines the powers, duties and responsibilities of the PPSC. Its mandate is simple—to prosecute criminal offences within the jurisdiction of the Attorney General of Canada on behalf of the federal Crown in a manner that is independent of any improper influence and respects the public interest.

In addition, the act mandates us to provide advice to law enforcement agencies such as Environment Canada and Parks Canada Agency in respect of investigations that may lead to prosecutions.

Providing legal advice during a criminal investigation ensures that investigative techniques and procedures are consistent with the evolving rules of evidence and Charter protections.

Our role as legal adviser to investigative agencies is distinct from the investigative roles they perform. The PPSC is not an investigative agency and our prosecutors are not investigators. Although prosecutors provide advice during the course of an investigation, prosecutors do not initiate, direct, or supervise investigations. They do not gather evidence; that is the role of Environment Canada and Parks Canada agency enforcement officers.

Prosecutors and enforcement officers exercise separate and independent roles in Canada. Enforcement officers decide whether to commence an investigation, who to investigate, how to investigate, and whether to lay charges at the end of an investigation. This separation between investigative and prosecutorial authority is well entrenched in Canadian law.

Once charges are laid by the enforcement officer, the prosecutor must decide whether to proceed with the prosecution. The test we use is as follows. The prosecutor examines the evidence to see whether there is a reasonable prospect of conviction. If there is, then he or she decides whether, in light of the provable facts and the whole of the surrounding circumstances, the public interest requires the prosecution to be pursued. If the prosecutor is not satisfied that the prosecution should proceed, he or she can put an end to it by withdrawing or staying the charges.

In exercising prosecutorial discretion, our prosecutors are guided by a desk book. This document, called The Federal Prosecution Service Deskbook, is available publicly through the PPSC's website.

In four jurisdictions in Canada, namely Quebec, Alberta, British Columbia, and New Brunswick, there is a practice of pre-charge approval in environmental matters. In those jurisdictions, prosecutors exercise their discretion to prosecute once the investigation is completed but before the charges are laid. We apply the same test in pre-charge jurisdictions as we apply in post-charge jurisdictions, except that we must be satisfied the test is met before the police or the investigative agency lays the charges.

I turn now to address the operational impact of Bill C-16 on the PPSC.

Many of the statutes proposed to be amended will include mandatory minimum fines that must be imposed upon a conviction. In addition to mandatory minimum fines, the increase in the maximum penalties, doubling of fines for repeat offenders, mandatory additional fines for economic advantage gained, cumulative and per day fines, purpose clauses, sentencing principles and aggravating factors, are strong signals to the courts that these offences are very serious.

Greater penalties, improved powers to fashion creative remedies in sentencing, and the ability to revoke operating licences, will, we believe, add complexity and lengthen sentencing proceedings. There may also be constitutional challenges to this legislation.

In summary, we anticipate more trials, increased complexity of proceedings, and many more investigations due to the increased number and efforts of the enforcement officers. In terms of implementing Bill C-16, our prosecutors will continue to advise enforcement officers during their investigations and will inform the court on the intent of Parliament in passing the Environmental Enforcement Act. Our prosecutors will advocate firmly but fairly for principled sentences based on the law and the evidence before the court.

Thank you for the opportunity to address the committee. I would be pleased to answer any questions you may have.

9:20 a.m.

Conservative

The Chair Conservative James Bezan

Thank you.

We're going to go with five-minute rounds, so we can get as many questions in as possible.

Mr. Scarpaleggia.

9:20 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Thank you very much.

Ms. Proulx, I have one quick question about the PPSC. Could you tell us again why it was created and what sort of glaring need it filled? We were prosecuting before this agency was created. You may have mentioned it at the beginning of your presentation, but could you explain a little further why it was created? Was it under the Accountability Act?

9:25 a.m.

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

Chantal Proulx

It was. Thank you for your question.

The Director of Public Prosecutions Act was part 3 of the Federal Accountability Act, which came into force on December 12, 2006. The Minister of Justice, the Honourable Vic Toewsat the time, testified before Parliament that the intent of the legislation was to make clear the independence of federal prosecutions from any undue or improper influence.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Was this a problem before?

9:25 a.m.

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

Chantal Proulx

There wasn't any case of improper influence that had been identified, no. It was to make sure that prosecutions were manifestly and wholly independent, through the creation of mechanisms whereby, should the Attorney General wish to direct the DPP to act in any particular fashion, he has to do so in writing. That direction is published in the Canada Gazette.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Thank you. You will recall that in the last decade or so we've cleaned up the effluent from pulp and paper mills. I don't believe pulp and paper mills are polluting anymore. Is that the case? Have there been infractions under the pulp and paper effluent regulations recently? Is everything fine in that sector?

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

From memory, I know that there are indeed federal pulp and paper regulations. Since the early 1990s, we've done a lot of work in that sector. Now the compliance rate in the pulp and paper sector is very high.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Is it 100% or more like 95%?

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

I don't think it's 100%, but it's a very high level.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Are your inspectors informed of violations from time to time? Do you know whether any complaints were filed over the past two or three years concerning effluent from pulp and paper mills?

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

I can ask my colleague Kevin to answer that question.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Of course, go ahead.

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

As he comes from the Atlantic region, he's very well versed in the environmental field.

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Does the Atlantic region include Quebec?

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

9:25 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

In fact, the majority or a large number of pulp and paper mills are located in Quebec. I'd like it to be an inspector from Quebec who covers the Quebec region. That's why I asked the question. Is there another inspector here at the table who covers Quebec?

9:25 a.m.

Chief Enforcement Officer, Department of the Environment

Albin Tremblay

No. Mr. Buerfeind covers the Atlantic region, Mr. Brunet Ontario.

I know the Quebec region well, since I've worked there for about 20 years.