Thank you, Mr. Chair.
The reason I raised this point is that we did have a brief from an organization known as Ecojustice, which I believe presented itself as a group with the same sort of knowledge of environmental law that I was hopefully attributing to Ms. Duncan. In their brief, they included an appendix A, and the statement that was made in that appendix A is as follows, and I will quote it:
The principle that regulatory authorizations such as permits and licenses do not create blanket immunity from prosecution under the regulatory statute is a fairly well established principle in a variety of contexts.
That seems to me to be the principle that was set out at least in paragraph 23.3(a). So it concerns me that even if we were to delete that paragraph 23.3(a), we would still be left in a position whereby if this clause 23 were enacted, the courts would proceed on the same principle.
I'll repeat that from Ecojustice's brief:
The principle that regulatory authorizations such as permits and licenses do not create blanket immunity from prosecution under the regulatory statute is a fairly well established principle in a variety of contexts.
The Ecojustice people were kind enough to present four cases in support of that proposition, and the one that seemed clearest to me was a case of R. v. BHP Diamonds Inc. in which they state:
...the project which caused the sedimentation was executed in accordance with the plans and standards established by a variety of regulatory bodies. The construction of the channel was included in the s. 35(2) authorization by DFO.
...the court concluded that although the sedimentation caused by the project was included in the s. 35(2) authorization, such authorization does not provide “blanket immunity from prosecution for any and all infractions under the Fisheries Act.”
The difference is that in that litigation, the Government of Canada was going after the private individuals, and now, under clause 23, we've provided a right for any number of people to go after other private individuals. So my concern is that the courts will simply extend that principle, and that it is somewhat misleading for us to try to delete it when we know we can laugh behind our backs that the courts are going to do it anyway.
These are complicated issues, and I don't pretend that I necessarily have it right. I'm not an environmental expert, but in light of Ms. Duncan's comments to a similar effect regarding subclause 16(4), that the courts would probably import the same provision anyway, that's the concern I have with respect to subclause 23(3), even if it's deleted.