Environment Committee on Dec. 9th, 2020

[Muhannad Malas]

I'm afraid I disagree with that. I think much of the analysis by experts has shown that we are far behind.

[Raj Saini, Liberal, Kitchener Centre, ON]

No, no, in terms of packaging all of it, that's fine. I'm just looking at the maximum fine value in Canada that could have charged under Canadian law as compared with the maximum fine law in the United States. We had a greater penetration of penalties than the Americans did—and the Australians also, because there are 14 jurisdictions in the world.

Anyway, I want to leave some time for my friend Mr. Longfield.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you.

I'm thinking more in terms of not trying to relitigate a case here. The courts do what the courts do based on what we give them by way of regulations. I think we've made the point that the 2017 report needs to have some real consideration.

Unfortunately, we haven't been briefed yet by the department, so it's hard to see where they are in that process, but that will come out in future meetings. In the throne speech we're looking at investing $46 million over five years in additional environmental enforcement to try to give ourselves more resources to handle especially the serious offences.

I want to get back to the NOx, very briefly.

Are we including it in our climate change list of greenhouse gas emissions, or is it something we also need to consider including?

This is for Muhannad, please.

[The Chair, Liberal, Francis Scarpaleggia]

Give a brief answer, please.

[Muhannad Malas]

I wonder whether Mr. Sharpe might be in a better position to answer that question.

[The Chair, Liberal, Francis Scarpaleggia]

Mr. Sharpe, briefly.

[Ben Sharpe]

My assumption would be that Environment Canada is taking into account NOx as it impacts ozone formation. I do not know for sure, offhand, and I don't like to speculate.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you. That is something we'll want to check on.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Longfield.

I now yield the floor to Ms. Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you.

We have the figures here that were provided to us. In Germany, for example, there have reputedly been 1,200 premature deaths due to these vehicles that were badly made or whose defects were hidden.

I think that when there is an attack on the environment and human health and that it is for the sole purpose of making profit, it should be severely punished.

This is my introduction to get to my next question.

The House of Commons has referred the review of the Canadian legislation to the Standing Committee on Environment and Sustainable Development.

With reference to Volkswagen and its shortcomings, can you suggest any changes we could make for enforcement purposes?

I'm thinking mainly of part 7, which deals with pollution control.

[The Chair, Liberal, Francis Scarpaleggia]

To whom is your question addressed, Ms. Pauzé?

[Monique Pauzé, Bloc, Repentigny, QC]

To whoever can answer it.

[The Chair, Liberal, Francis Scarpaleggia]

Any volunteers?

[Muhannad Malas]

I can take the first stab, if that's okay with the rest of the panel.

There are three very easy recommendations I can highlight right now. They are not within the context of part 7; they are probably more spread out throughout the act, but related to enforcement.

The first one would be to remove the prerequisite of investigation, or prerequisite for a citizen to be able to bring an environmental protection action, which is what I faced in this issue around Volkswagen. The minister has to first launch and then complete an investigation, and then the concerned citizen who wants to bring forward an environmental protection action has to demonstrate that the minister failed to investigate and respond properly. That's a very high threshold and a significant barrier in terms of discouraging people from bringing forward environmental protection actions.

The second one would be to remove the significant harm threshold. In the case that a citizen is able to pass the first bump when it comes to the investigation, as citizens, we still have to prove that there was significant harm to the environment. That language is very difficult and could position any citizen to fail, basically.

The third one would be around cost, to ensure that citizens are not paying costs if they are unsuccessful.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Malas.

We'll continue with Ms. Collins.

[Laurel Collins, NDP, Victoria, BC]

I just want to follow up on some of Mr. Saini's comments.

To me, it seems like he was misunderstanding a bit about what could be a maximum penalty in Canada with this case. I just want to go back to Mr. Malas, and potentially maybe open it up to Mr. Wright if he has a comment on this.

Even if you want to ballpark and then send us some documents afterward, in your opinion, what could have been the maximum charge if they hadn't bundled them and if it hadn't had the shortcomings it did?

[David Wright]

The number of charges is completely discretionary. They chose 60 charges. They could have chosen 100 charges. They could have chosen 200 charges. They could have chosen 128,000 charges if they wanted to, but that's completely unreasonable.

The figure is actually a bit of a chimera. It's the maximum figure and the minimum figure for fines. It doesn't really assist you very much.

It looks like what happened was there was meeting between counsel—the Crown and the defence—before charges were laid. The whole determination as to how many charges would be the subject of the plea appeared to be.... One inference is that it was the object of negotiation between the prosecution and the defence in a very unusual circumstance.

The fact is, the amount of money and how punitive it is was determined by the Crown, which had a wide open field. They could have gone as high as they wanted to and as far as they wanted to.

In my materials, I ended up looking at just the figure for fines and not the civil remedies. Certainly, I understood that it was $4,745 per vehicle in fines—not civil remedies—in 2017, and in Canada it was $1,535 per vehicle. It's less than one-third of the gravity of the fine.

Those are the comments I have.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Wright.

Your speaking time is up, Ms. Collins.

We'll continue with members of the Conservative Party, but I do not know who will be asking the next questions.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

I think the NDP is on a roll here, so I think I'd like to see one more round.

[The Chair, Liberal, Francis Scarpaleggia]

I understand.

Ms. Collins, you may continue.

[Laurel Collins, NDP, Victoria, BC]

Thank you.

I just want to turn it over to Mr. Malas.

You had mentioned there were some estimates of what a ballpark of the fines would have been here in Canada if the charges hadn't been bundled the way they were. Could you follow up with written material with those numbers?

[Muhannad Malas]

Yes, I'd be glad to follow up with some materials. It was my mistake to come unprepared. It's the one number that I didn't put in my notes.

As Mr. Wright explained, the way the Crown would have played the charges would have played a big role in determining what the maximum fine was.

If we consider each car as an offence, I think the maximum fine under CEPA would have been several thousand to probably...I can't remember the number. If we assume it was several thousand, if you take that number and multiply it by the number of cars that were imported and if the charges also included the sale of the cars and some of the other charges that were laid in other jurisdictions that were not laid here in Canada, that would have added up to be much greater than what we fined the company.

I would be glad to follow up with exact numbers.

[Laurel Collins, NDP, Victoria, BC]

Thank you so much.

I just want to jump back to a topic that was mentioned before, about the fact that Environment Canada is doing fewer inspections and fewer prosecutions. Mr. Malas, you had mentioned that 20% of investigations were dry cleaners. The fall 2018 report that you had referenced also found that 70% of prosecutions—the vast majority—were of dry cleaners.

I'm just wondering if these numbers concern you. In addition, you had mentioned that more resources are needed. Are there any other steps that we could be taking to make sure that it's not small mom-and-pop shops, but it's really these larger companies who are doing the lion's share of pollution?

[Muhannad Malas]

When it comes to that percentage—70% of all convictions in a couple of fiscal years, between 2014 to 2017—I think they all targeted dry cleaners. It raises the question to me about whether ECCC is capable of and willing to take on large polluters. The case of VW is a prime example.

Yes, most certainly there's a funding issue or a resourcing issue. One thing that would be very interesting for this committee to look into is the capacity within ECCC enforcement. I believe 201 enforcement officers in 2018 were responsible for implementing not only the CEPA regulations, but also the Fisheries Act regulations across our massive country. That's not an adequate number, but I'm not sure what the right number would be. I think that's something that's worthwhile exploring.

The fact that ECCC is focused on very few substances in its inspection measures and enforcement actions and it's focused on small mom-and-pop shops, I think is troubling. It would be interesting to explore in this study by the committee why that is and what resources Environment and Climate Change Canada could have to be able to take on large-scale crimes.

[Laurel Collins, NDP, Victoria, BC]

Mr. Sharpe, you mentioned that bigger fines would help with leading us in the direction of accelerated electrification through this process.

Are there other steps you think Canada should be taking to ensure that this money is helping us move towards zero-emission vehicles and our climate targets?