Environment Committee on Dec. 9th, 2020

[Peter Schiefke, Liberal, Vaudreuil—Soulanges, QC]

Thank you for that, Mr. Sharpe.

The next question I have is one relating to chemicals management, which is a big part of CEPA and the chemicals management plan.

Mr. Malas, Canada has committed to implementing the 2030 agenda and its sustainable development goals, SDGs, and 12 of them aim to ensure sustainable consumption and production patterns. Target 12.4 is to achieve by 2020 the environmentally sound management of chemicals and all wastes throughout their life cycle in accordance with agreed international frameworks and significantly reduce their release to air, water and soil to minimize their adverse impacts on human health and the environment.

What role would you say CEPA has in getting us closer to achieving 12.4 and how can we do a better job at it? What can we do within CEPA to achieve that?

[Muhannad Malas]

I think CEPA is the most critical legislative tool we have to achieve that target. I think the opportunity that we have today with modernizing CEPA can bring us forward to achieve not only those global targets but also our domestic targets. One of the issues we've had in our chemicals management plan has been the fact that we have not measured performance. This has been shown by the Auditor General's reports over the years. We have not seen whether our chemical management has led to meaningful reductions in exposures and in risk to the environment. When it comes to some of the major issues and gaps that we have within CEPA when it comes to chemicals management, it's the fact that we do not require the risk assessment regimes and our risk management and regulatory regimes to consider vulnerable populations and marginalized communities that are most disproportionately affected by toxic substances. Some of the vulnerable populations could include biologically or physiologically vulnerable communities, whether it's pregnant women and children or socio-economically marginalized communities.

If we don't address those communities and provide them with the protections adequately, then we're not going to be able to meet those targets domestically and globally at this time.

[Peter Schiefke, Liberal, Vaudreuil—Soulanges, QC]

Mr. Malas, you'd be fully supportive of the implementation of the aspects of the 87 recommendations that deal specifically with those areas that you see as gaps that need to be filled.

[Muhannad Malas]

I would strongly support those recommendations by the ENVI committee in 2017. We see them as a blueprint for how CEPA could be modernized and brought to the 21st century, because we still have legislation from 1999.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Pauzé, you have the floor for six minutes.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you.

I'm going to continue in the same vein as Mr. Schieke. So I will also be addressing Mr. Malas.

Mr. Malas, with regard to the 87 recommendations and the enforcement of the Canadian Environmental Protection Act, what are the three most pressing problems we should prioritize in the context of the current climate emergency?

[Muhannad Malas]

It's a tough task to reduce 87 recommendations to three, but I can definitely take on the challenge. The first top priority would be to ensure that vulnerable populations and marginalized and racialized communities, especially indigenous communities, are adequately protected from toxic substances and pollution so those recommendations that pertain to vulnerable populations are critical. Very related to that is recognizing Canadians' right to a healthy environment within CEPA, which would be the first time that a federal legislation would have a recognition of that right. Those two go hand in hand. Protecting vulnerable populations and recognizing the right to a healthy environment are two sides of the same coin.

The second priority is around how we risk-assess chemicals. We have a "one chemical at a time" approach, and we have tens of thousands of chemicals on the market. We need to be smarter. We need to go where the best practices are globally in looking at classes of chemicals, cumulative effects, and ensuring that we're addressing exposures in a holistic way as opposed to an individualistic way.

The third one would be around enforcement. We should ensure that we have civil enforcement mechanisms that enable the public to participate in decision-making and enforcement.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you very much, Mr. Malas. You are on my wavelength when you talk about chemicals, and therefore about pollution, and its effects on human health.

My other question is for Mr. Sharpe.

I would like to congratulate you on your presentations at the Electric Mobility Canada conference. I learned a lot listening to you.

Towards the end of 2017, your organization published a report on vehicle emissions compliance and enforcement programs in 14 markets. It showed that Canada is doing poorly.

Since the start of the Volkswagen investigation, what steps has Canada taken to improve its compliance and enforcement activities?

Please answer briefly, because I have another question for you.

[Ben Sharpe]

I don't know specifically what actions Canada has taken that would have been different from the United States. As you well know, the Canadian and the U.S. federal regulations are very much tied, aligned and intentionally harmonized, given the alignment across the markets. I do not know of any specific actions Canada has taken over and above, in terms of its compliance and enforcement actions.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you.

Let me come back to the environmental reparations aspect. You mentioned it in your statement. For example, in the United States, given the fact that Volkswagen was against anything that could protect the environment, it had to give money. So there was a remedial aspect. With these sums of money, work had to be done on zero-emissions vehicles. This is the link we make with the previous motion.

You and your organization have an international vision. Do you think that the reparations aspect is being developed in all countries, when fines are imposed?

[Ben Sharpe]

From the ICCT perspective, we believe that mobilizing these penalty funds to move towards electric drive is a best-case scenario. Certainly for electric vehicles of all types, both light and heavy-duty, there's going to need to be a lot of policy support and a lot of sustained long-term funding in order to jump-start this transition.

It really is, at least from our perspective, a win-win. You certainly want to penalize malfeasance and cheating. That's pivotal as a deterrent. However, being able to put those funds towards something that is really critical in terms of protecting the climate is a really big lost opportunity for Canada, in our minds.

One of the things we've been looking at quite a bit over the past two years is Canada's role in the electric vehicle transition. It's falling behind some of the other auto-producing countries—at least currently. Canada needs to be doing all it can to make up some lost ground in terms of auto-producing, and particularly electric vehicle production. We think that—

[Monique Pauzé, Bloc, Repentigny, QC]

Tell us more about the reparations aspect specifically; Volkswagen paid a fine, but invested $2 billion in zero-emissions technology.

It is therefore not enough to just pay fines. Could we consider making reparations mandatory?

[The Chair, Liberal, Francis Scarpaleggia]

Unfortunately, time is up, but I will allow you to answer yes or no.

[Ben Sharpe]

Yes.

[The Chair, Liberal, Francis Scarpaleggia]

Perfect.

Ms. Collins, you have six minutes.

[Laurel Collins, NDP, Victoria, BC]

To the witnesses today, thank you so much for being here.

My first couple of questions are for Mr. Wright.

It was mentioned that in the U.S. there was only a year and a couple of months between when the EPA issued a notice of violation to Volkswagen and when the company pleaded guilty to the criminal felonies and agreed to pay billions of U.S. dollars. In Canada, the ECCC began investigating and then charges were only laid four years later.

As part of their plea agreement in the U.S., Volkswagen entered an agreed statement of facts in 2017 that would be legally admissible in Canadian court.

Mr. Wright, shouldn't that have meant that the investigation would be easier or quicker here in Canada?

[David Wright]

Yes, it would have been much easier. The Canada Evidence Act, section 23, allows for foreign judgments and foreign findings to be applied in Canadian courts, and it certainly would have streamlined and assisted any prosecution. The fact that it took almost another three years for the case to get brought before a court and for it to be resolved is unexplained at this point. Why did it take so long? The Canadian standards are based on the American standards, so in essence you're dealing with exactly the same case. You're dealing with exactly the same evidence. You're dealing with the same victims. You're dealing with the same people who uncovered the problem in the United States. My view is that when you have, in essence, the same company, it's a different corporate entity, but it certainly would be of great assistance in any prosecution. It doesn't mean that there would be no paper involved in the prosecution. There'd be lots of paper involved, but the prosecution should have been much more streamlined.

[Laurel Collins, NDP, Victoria, BC]

Do you have any idea why it would have taken four years, and can you explain how the legal process in a case like this usually works? I think you mentioned it might have been unusual that charges were negotiated before they were laid.

[David Wright]

In my experience, it's extremely unusual that the disclosure would be given prior to the charges being laid. It implies that there were discussions taking place by not the accused or the investigators but the defence counsel as to next steps and how the matter was to be dealt with. That's extremely unusual, and it's not open. It's not what we should be doing or how justice should be seen to be done. It must be clear and transparent, and the public should have an understanding that these cases are progressing through the courts. There should be pronouncements at various points as to the progress of the prosecution. That didn't happen. In fact, the involved organizations did not have a chance to give input regarding the ultimate resolution of this case.

[Laurel Collins, NDP, Victoria, BC]

Mr. Wright, are there any other cases that you're aware of in which charges would have been negotiated before they were laid in this way?

[David Wright]

I'm not aware of any charges. In 32 years I've never seen anything like this.

[Laurel Collins, NDP, Victoria, BC]

Thank you so much.

In the U.S., Volkswagen faced criminal charges. Would criminal charges have been possible here in Canada?

[David Wright]

I think so. I think that conspiracy to commit an indictable offence and fraud are two criminal charges that could well have been laid. The Crown could have taken that option. I didn't really see where the loss would be. You commence with criminal charges, and then at a later date, looking at the complexities that have arisen or enormous amounts of time or disclosure problems or any of those things, you can always have fallback on the indictable offences found in the Canadian Environmental Protection Act. Use of the Criminal Code should be made when you're dealing with extremely serious environmental crimes such as the one that was presented to the committee in public by Volkswagen's actions.

[Laurel Collins, NDP, Victoria, BC]

Maybe I'll just open this up to Mr. Wright or Mr. Malas regarding any ideas as to why it would have taken four years...and any changes to the current legislation—CEPA, etc.—that would allow us to go towards criminal charges in these kinds of cases.

[David Wright]

I just think, from my perspective, the Crown, in making the assessments as to how best to serve the public, should certainly consider criminal charges when this kind of flagrant violation has occurred. Every tool should be looked at, and every tool should be looked at carefully. There should be no evidence and no report that the public doesn't know. My thought is that the process should be much more transparent and that the Crown and the investigators should be working hand in hand with organizations and the public to make sure that these cases are properly dealt with.