Evidence of meeting #19 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 clause.
A recording is available from Parliament.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Yes. We're very grateful for the assistance of the House of Commons legislative drafters and to the Library of Parliament staff who made some corrections in the drafting. So somewhat later than we originally tabled them, we proposed corrected ones.
If I could explain, Mr. Chair, the purpose and intent of what we're proposing....
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Right now the amendments proposed by the government provide that all of the proceeds of all of the fines imposed by convictions under these various statutes, including CEPA and other environmental statutes contained in Bill C-16, would go to the environmental damages fund. What my amendment, the NDP amendment, proposes is that the exception to.... I should clarify that later on, the government actually makes provision for the judge to recommend to the minister that a portion of the penalty imposed could instead go to an individual or organization rather than the fund.
The purpose and intent of our amendment is several-fold. As I said, we appreciate that some recognition is given to the fact that it may be appropriate for some of the fine to go to other parties than to this fund, but our recommendation is that's the wrong route to go. I've talked to a number of environmental prosecutors across Canada to confirm my discomfort with that. Under our constitutional system of government, our democratic system, the judicial and executive functions are very carefully separated. What the government's proposed amendment does is to blur those lines. I would welcome the government outlining to our committee any other circumstance where there is a judge making a recommendation to an elected official to do something. The provision is that a judge may recommend to the minister to give some of the proceeds of the fine that's going to the environmental damages fund to somebody else, which the minister may or may not agree with.
What we're proposing is something much cleaner and more consistent with the way the democratic system in Canada works, where the judicial and executive functions are separated. We had a bit of a discussion about this in our last meeting. What usually occurs in the prosecution, and is very common now in environmental prosecutions—and there is a whole book now on innovative environmental sentencing, which I encourage members to look at, if they have an opportunity—is that the enforcement officers, the investigators, actually make recommendations to the prosecutor on sentencing. The prosecutor in turn makes recommendations to the judge in those cases where they deem it appropriate. For example, if a river has been damaged and there's a river-keeper organization, they know about that through the department and their ongoing relationships and they'll make a recommendation. That is a much cleaner way of doing it. In the case of the Ontario region, for quite some years they've actually been compiling a list of organizations that do good work on the environment, and they have categorized them, for cases in which they do bring a prosecution, so that they can recommend appropriately, and already know about the organization. So that's the process that usually proceeds.
What we are proposing through this set of amendments is to provide, instead, that all funds, all proceeds, and all of the fines in an environmental conviction go to the environmental damages fund, except.... And then a provision is added saying that the court has the power to determine that it will award all or a portion of the penalty to an individual or organization.
NDP
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
So rather than the law saying that the judge can ask the minister to give money to an organization, the judge would give the money directly to the organization.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
That's right, and it removes any semblance of interference or any inappropriate factors. Instead it comes from the enforcement officers themselves, who obviously confer within the department. It also separates the judicial and executive functions.
Let me give the remainder of my arguments for this, and then I would welcome discussion, if that's all right with the chair.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I'm making this proposal specifically because the government, in bringing forward the statute, argued that the purpose and intent of Bill C-16 is to provide for harmonization and consistency across federal environmental statutes, but there's one key environmental statute that is missing from this bill, curiously, and that's the federal Fisheries Act.
The reason why that's curious is federal enforcement agencies have used the federal Fisheries Act more than any other statute, including the Canadian Environmental Protection Act, to prosecute environmental offenders. And that is significant because in the federal fishery general regulations, which were updated as recently as 1993, section 62 provides that “Where an information is laid by a person in circumstances other than those referred”—in other words, laid by the government—“relating to an offence...the payment” of the proceeds of any penalty “shall be made...(a) one half to the person”. In addition where any materials are seized and disposed of, a portion of those proceeds are also to be awarded one-half to the person who files the private information.
That has remained in federal law for quite some time, and there have been occasions where those costs have been awarded. That right to file a private prosecution rests in the Criminal Code of Canada. There are exceptions. The Yukon's Environment Act and the Northwest Territories' Environmental Protection Act also specifically provide the right of an individual to file a private charge against a violator of those statutes.
So the right of a private prosecutor exists, despite whatever provisions exist in the federal environmental statutes. What that provision in the federal Fisheries Act recognizes is the fact that at any point in time, the Attorney General, whether provincial or federal, has the right to intervene and to stay or stop the proceedings or to intervene and take over the prosecution. And both have occurred from time to time in Canada where private charges are brought.
We have more recent precedents where in fact the court is allowing the private prosecutions to proceed. In some very unique and encouraging situations in Ontario, the Attorney General has actually cooperated with private prosecutors and proceeded to prosecute the case together cooperatively. So as we have organizations such as Ecojustice that have qualified lawyers working full time who are fully skilled in doing these cases, the courts and some governments are recognizing the valid role.
It's also important to recognize that a number of very important cases were initially instigated by a private charge being laid. In the first major case in the tar sands, against Suncor, the charges were laid by the chief of the Fort McKay Indian Band. That case was then taken over by the Alberta prosecutor and proceeded with and Suncor was convicted.
Another case that has been discussed in our proceedings is the current charge against Syncrude on the oiled birds in the tar ponds. That case, which is now proceeding through the courts, was initiated by private information laid by individuals in Alberta. So on a number of occasions the crown has determined that yes, the charges are valid and they will proceed. Other cases have been stayed.
So the crown has the full authority at all times to intervene to stop a prosecution if they don't think it's valid or to take over the case and proceed and convict. You need to recognize, too, that when you bring private charges in court, there is now in the criminal courts a proceeding where the court actually evaluates and determines whether or not there is a prima facie case, whether the case should proceed. So a prior prosecution cannot proceed to the court unless there has already been that first level of determination.
In the instance that they actually obtain a conviction, then it's very clear that it was a valid charge and there was a lot of private work involved and the hiring of private expert witnesses. What the federal government has recognized in the federal Fisheries Act is that there should be some mechanism for award of costs to help that prosecutor, because otherwise all of the proceeds go to the government. In the case of a private prosecution, in the Fisheries Act the court is required to award half of any penalty to the person who laid the charge.
What I have proposed in my amendment is to give greater discretion to the court to award any or all, so they can look to other precedents, such as the Fisheries Act, in determining that. Also, it is important to recognize that the practice across Canada has been not to award substantial costs in proceedings in the criminal court, so without these provisions, there really is no possibility of awarding any costs of any substance to the private prosecutor to compensate for the costs they have incurred.
The final point I would make on this is that we have been advised that the very purpose and intent of Bill C-16 is to fetter the discretion of the courts. Particularly in the case of CEPA, the government is adding a three-tiered process to go through, telling the courts precisely what they must go through in determining whether or not they will convict.
In keeping with that, it's only sensible that we provide clarity to the court in the matter of private information and private prosecutions.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
What we'll perhaps do, given that it brings an amendment to his....
I'm sorry, Mr. Woodworth.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
In 1995 the Liberals did a good thing. They created the environmental damages fund. What our provision intends to do is to enhance and broaden the effectiveness of that environmental damages fund. As an example, in 2005 the Migratory Birds Convention Act, 1994, was amended to do exactly what we're trying to do here across the board; that is, to direct that all penalties under that act should be paid to the environmental damages fund. Before that amendment came into effect, over 10 years before that, there was only one award of $5,000 made to the EDF. Since that amendment came into effect four years ago, there have been 11 awards totalling over $90,000 directed to the EDF. These have resulted in nine projects across Canada.
What we want to do is take that success story from the Migratory Birds Convention Act and apply it across all the environmental statutes we're amending here today. I would very much hate to see that good and noble effort diluted by suggesting that instead of going to the environmental damages fund, these moneys should be going into private prosecutions.
So I'm opposed. Thank you.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Thank you, Mr. Woodworth.
Does anyone else wish to speak to this amendment?
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Mr. McGuinty was hoping to hear from the officials on this.
Renée Caron Executive Director, Legislative Governance, Department of the Environment
I'd be happy to explain a little bit about how the EDF is currently managed, as there may be some misunderstanding in that regard, Mr. Chairman.
Executive Director, Legislative Governance, Department of the Environment
The EDF is a specified purpose account. It was established for the management of court orders and awards or other financial compensation to Environment Canada for damages to the environment. The sources of the funds that go into the EDF are court orders, i.e. fines, which account for approximately 80% of what goes into the EDF. There are also out-of-court settlements, voluntary payments, and there is the possibility for awards provided under various international funds, but none of those have been done to date.
In the case of court awards, which are the primary concern here, currently the EDF receives money from the court award only if the judge specifies in the order that it should go to the EDF. The default is that it would go to the Consolidated Revenue Fund, unless it is specified. It also occurs in about 15% of cases that the court will order money to go to a specific individual, which means it goes neither to the EDF nor to the CRF. About 55% of the orders go to the EDF, about 30% default to the Consolidated Revenue Fund, and about 15% go to specified individuals or organizations.
Environment Canada administers the EDF by allocating money from court orders to organizations in the community in which the environmental damage occurred. This is done through contribution agreements for projects directed at environmental restoration, improvement, research and development, and education.
Environment Canada follows an open and transparent process to request proposals from local organizations and selects the best proposal based on its overall merit in achieving the purposes of the project.
The EDF is administered through Environment Canada regional offices. Officials in the regions develop management plans for the best use of the funds, in part through discussions with internal and external experts, including other government departments, local NGOs, academics, and such.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
That helps clarify quite a bit.
Is there a need for Ms. Caron to go on?
Liberal
Justin Trudeau Liberal Papineau, QC
I have a question of Ms. Caron, through you, the chair.
If $50,000 comes in from a particular infraction, is there a sense that the EDF officials will simply accept that $50,000, put it in the big pot, and then decide where it's best spent, or is there a sense that because this came in on this infraction, can we then spend it back on fixing the infraction?
Executive Director, Legislative Governance, Department of the Environment
That's an excellent question, Mr. Chairman. It was getting to the next point I would make, which is that this is run by Environment Canada as a very targeted program. Therefore, the amount of the court order is directly tied to the project, down to the dollar. In addition, the default, the beginning point, is that it should be a local environmental restoration project targeted at the damage that actually occurred.
What the EDF administrators have found is that almost all of the time this works in a good fashion, and there are cases where the courts will direct or indicate that the fine must go to a specified project. It goes to the EDF but it must be for a particular project. Most of the time that has worked out all right, but there have been instances where the court gave direction and it was not actually possible in practice either to get any proposals from anyone to do the work or it was not just a viable project at all, and I have some examples of that.
One example that stays in my mind is an order to restore a tributary of the Barbara Weit River. It was found that actually that tributary had dried up and there was no possibility to do the work. What that necessitated was to return to the court, open up the court's order and release that restriction respecting the funds, which tied things up for approximately three years.
I believe what the provision is trying to do is to allow for some flexibility when necessary, but indeed the program is run in a very targeted manner.
