Environment Committee on Nov. 22nd, 2010

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

We'll move on to our last seven-minute question, from Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

Thank you very much, Ms. Roussel, gentlemen, for attending today. It's always refreshing, if I may say so, as a lawyer myself, to have witnesses appear who are lawyers and have read the act, and are able to discuss the act and its specific provisions.

What I would like to do, if I may, Ms. Roussel, is to direct some questions to you around the remedy provisions contained in clauses 19 and 20 of this proposed bill. I want to be sure the committee understands precisely how these will work.

First of all, looking very specifically at paragraph 19(2)(b), where it talks about ordering the defendant, am I correct that the reference to “defendant” in that paragraph must refer to the Government of Canada?

[Kathleen Roussel]

No.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right.

All these remedies only exist in an action under clause 16, which is against the Government of Canada. Again, in looking specifically at paragraph 19(2)(b), I think we sometimes can imagine that if the Government of Canada were the plaintiff suing a private party, the court might order the defendant in such a case to provide financial collateral for the performance of its action.

Can you help me to make sense of this when the Government of Canada is the defendant being asked to provide financial collateral? To whom would that be provided? Can you help me to understand that?

[Kathleen Roussel]

I don't know that I'm going to be much help. You can appreciate that I've not seen this previously in a statute where the defendant is the government. It's a presumption, and I don't want it to be seen as advice, but I would presume that because the action is between two parties, the court would order Canada to provide collateral to the other party in the action, but it's not spelled out here. I do think that may give the court some leeway.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Is it a possibility that the financial collateral would be paid to the court?

[Kathleen Roussel]

I think that's left to the court, quite frankly, because it's certainly not in the statute.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Similarly, with respect to paragraphs 19(2)(c) and (d), where the Government of Canada is liable to be ordered to pay an amount for the restoration or rehabilitation of a part of the environment, or for the enhancement or protection of the environment generally, this is not money that the Government of Canada would pay to itself, right?

[Kathleen Roussel]

I don't think that's impossible. I think it's feasible. If I look at restoration orders, generally, under environmental statutes, typically the court will make a precise order where the money is to be paid. I'm certainly not seeing a bar in the bill to paying it to itself to be held for a particular purpose.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right. So the court would then be engaged in crafting the purpose, I assume. It wouldn't be just saying “Go spend the money however you wish” when the government itself is the defendant.

[Kathleen Roussel]

I would expect so, but that's speculative. I don't know how these cases would actually play out.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Under paragraph 19(2)(d), if the court ordered the Government of Canada to pay an amount to be used for the enhancement or the protection of the environment generally, because it found that the Government of Canada had failed in its duty as trustee of the environment, I'm thinking that this money would not come out of the environment department's budget, because then you'd be just robbing Peter to pay Paul. Do you see what I'm saying?

[Kathleen Roussel]

I think I see where you're going, and I think you're about to push me over a policy line where I can't go.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Well, I'm thinking it would be the court that would be drafting policy and would be saying to the government, “All right, you're not spending enough in the environment department; therefore we want you to spend more for the enhancement or protection of the environment, even if you have to take it away from other departments.”

Would that be a reasonable interpretation?

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

I think you have been pretty clear with the opposition about the ground rules. I would simply ask that you apply the same rules to the government and tell my colleague he is out of order.

[The Chair, Conservative, James Bezan]

Mr. Woodworth, you can ask what questions you want, but I will excuse our witness from having to answer anything that might go over the line in respect of policy, or that would put her in a conflict with the minister over legal advice that she has provided.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Sure.

I'm not asking for any policy input, nor am I asking for anything that might put you into a conflict. I am asking for some help in interpreting this provision, if you're able to provide it.

[Kathleen Roussel]

I don't feel that I am able to provide it. Certainly, given the way the bill is drafted, I think a lot of things would be left to a court. Whether a court would get involved in appropriations, I don't know, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Well, let me ask you about paragraph 19(1)(f), which orders the defendant to take specified preventative measures. Again, that defendant is the Government of Canada, correct?

[Kathleen Roussel]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Have you ever seen any other statute that permits the court to order a government to take specified preventative measures on an environmental matter?

[Kathleen Roussel]

I've never seen another statute written in this fashion. But it's fair to say that injunctive relief at common law is quite broad, and I think there are certain injunctions that could be brought preventatively to that purpose.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Have you ever seen another injunction ordering a government to restore or rehabilitate any part of the environment, such as the court is permitted to do in paragraph 19(1)(e)?

[Kathleen Roussel]

I certainly have never seen such an order made.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If we look at subclause 16(1), would you consider that the Government of Canada's failure to comply with or implement the Kyoto Protocol Implementation Act would fall within paragraphs 16(1)(a), (b), and (c), and give rise to an action against the Government of Canada?