Environment Committee on Feb. 1st, 2021

[Raj Saini, Liberal, Kitchener Centre, ON]

But if we look at the new U.S. administration, just by their first few weeks in office, you can see that there is this attitude to move forward and really advance the climate file.

I'm wondering if it would be better for us to be more in alignment with them. If they're going to be more progressive, then we should try to—

[Dr. Mark Winfield]

Yes. The short answer is yes. It's very clear as to where the Biden administration is going, which is to move in the same direction that California was trying to move in on these issues. We're clearly in a different world from where we were before January 20, but the environment we were in before January 20 also cautions us about tying ourselves too closely to where the United States decides to go.

[Raj Saini, Liberal, Kitchener Centre, ON]

How much time do I have, Chair?

[The Chair, Liberal, Francis Scarpaleggia]

You have 30 seconds left.

[Raj Saini, Liberal, Kitchener Centre, ON]

I want to tell you that I've been reading a lot about what you've written about urban sprawl. I don't have the ability to ask you a question, but maybe I will some other time.

Thank you very much.

[Dr. Mark Winfield]

I'd be happy to chat. Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Saini.

The floor is yours now, Ms. Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you, Mr. Chair.

My initial questions are for Ms. Gagnon-Rocque.

First of all, I'd like to thank you for your testimony and for being with us, Ms. Gagnon-Rocque. You wrote a master's thesis on the penal concept in environmental law. We can talk about the Volkswagen case, but I'll try to broaden the discussion a bit.

In the 2020-21 departmental plan, Environment and Climate Change Canada intends to continue its risk-based approach to the enforcement of federal environmental laws. As a lawyer, what is your understanding of this specific risk-based approach to environmental law?

My other question is this: Does this position jeopardize the criminal provisions currently in place?

[Ariane Gagnon-Rocque]

That's an excellent question. Unfortunately, I don't know what is meant by a risk-based approach. What kind of risk is enough to trigger a lawsuit? Unfortunately, this information is often not available. Unless you're the people who make and implement policy, you can't know what their intentions are behind it.

That being said, I come back to my point. I think the key to reducing the commission of environmental offences is prosecution and enforcement. Since there are few measures in place to enforce the act, there are areas that avoid enforcement. Clearly, the system isn't doing its job of deterring offences, so choices have to be made, but I think we need to move away from warnings. There are a lot of warnings, and very few prosecutions are brought.

For example, in 2016-17, 2,721 warnings were issued and 26 criminal investigations were initiated. So we need to work on that. As I said, administrative monetary penalties fulfill some of the objectives of enforcement, such as promptness, but also the application of penalties.

[Monique Pauzé, Bloc, Repentigny, QC]

You also discussed special mechanisms. Do you think there are mechanisms that could be put in place to assess actual or potential harm to human health so that offenders can be more severely punished? The criminal prosecution process is lengthy, but we know that health and environmental issues are intertwined.

[Ariane Gagnon-Rocque]

I'm talking about prosecutions because, as far as I'm concerned, I'm primarily interested in the enforcement of criminal law. It's evidence that's going to be presented by experts. It would be possible to get that evidence. Sometimes it can be obtained simply by inference, based on the nature of the environmental offence or the nature of the pollution case. However, I believe that Environment and Climate Change Canada is able to obtain this information when it is investigating a pollution incident.

[Monique Pauzé, Bloc, Repentigny, QC]

In your brief, you also talk about the restorative aspect of justice. Earlier, my colleague Mr. Saini raised the issue of the environmental damages fund. It was established shortly after your brief was filed, I believe. There are fines that are given

Do you think that the fund is a good solution, or should there be more direct sanctions, where damages would be quantified by experts and where corporations would not be required to pay fines, but rather to repair the damage caused to the environment?

[Ariane Gagnon-Rocque]

The fund is certainly a better solution than paying fines into a general Government of Canada fund, since it is dedicated to environmental protection.

That being said, my preferred solution is that the money be allocated to a project directly related to the offence. It's important to ensure that the money is used to remedy environmental damage, for example, or to support a project that would provide environmental benefits directly related to the commission of the offence.

Ideally, I would advocate remediation, but not all environmental infractions lend themselves to it, as is the case with Volkswagen, because damage must be directly targeted and, above all, repaired. If it isn't possible to repair the environmental damage caused, this is a good option, but it's important to ensure that the funds are directed to a project that is related to the offence.

[The Chair, Liberal, Francis Scarpaleggia]

You have 30 seconds left.

[Monique Pauzé, Bloc, Repentigny, QC]

I was just going to ask Mr. Winfield a question. It has been said, in the case of Volkswagen, that money could be paid for infrastructure for electric kiosks.

Was this a good way to proceed? Perhaps Mr. Bondy could answer that question. I'll get back to Mr. Winfield later.

[The Chair, Liberal, Francis Scarpaleggia]

I'll ask you to be very brief, Mr. Bondy. You have 10 seconds.

[Ken Bondy]

Thank you.

It's absolutely so. In the case of Volkswagen, where they have very little or no footprint in this country and employ a small number of Canadians, I believe those monies leveraged to increase employment for working Canadians would make sense.

[The Chair, Liberal, Francis Scarpaleggia]

Thanks.

Before we go to Ms. Collins, I would like to congratulate her on her wonderful news that her family will be getting larger. I thank her for that bit of good news at a time when good news is at a premium.

Go ahead, Ms. Collins.

[Laurel Collins, NDP, Victoria, BC]

Thank you so much, Mr. Chair.

Mr. Bondy, you mentioned the disproportionate fine paid in the U.S. Even if you adjust for the population and the number of vehicles sold, it's a small fraction of the civil and criminal penalties in the U.S. To follow up on Madam Pauzé's question, do you think there's any explanation for the difference between the Canadian and American cases and their outcomes? Really, what could we have done here in Canada if we had taken the same approach as our southern neighbours in the U.S.?

[Ken Bondy]

I don't see a simple answer. The curiosity is why we went so easy on Volkswagen. Again, there was no threat of elimination of investment or jobs.

That brings me to the second point. I don't think that simply under CEPA levying fines on corporations that can't meet the protection targets is the answer all of the time. In fact, monies could be used to try to teach and enhance environmental protections through companies. Mr. Winfield mentioned the pulp and paper mill a few times, which is a concern, but there are opportunities and there is much employment happening in those facilities. If we were to use some of those monies to enhance the environmental protections rather than simply levying fines, we would not only protect the industries in Canada but also certainly make some progress on environmental protection.

[Laurel Collins, NDP, Victoria, BC]

I want to follow up on something you mentioned just a moment ago and in your opening remarks, that Volkswagen doesn't have any manufacturing or engineering operations in Canada, so the number of jobs at stake was very minimal. Do you think greater penalties against Volkswagen could have impacted Canada's auto-parts and manufacturing sector in any way?

[Ken Bondy]

I think there could have been some discussion, and that discussion was lost. Maybe it's too far-fetched to suggest that part of the penalties would be to have Volkswagen invest in an entire manufacturing plant in Canada, but there are certainly a lot of independent parts manufactured here. A lot of things go into the manufacture of Volkswagen-related vehicles. I think we really missed the opportunity to enhance opportunities for Canada. We are not going to get that investment if we don't look at ways to manage it, or, in this case, perhaps even force it a little bit to get some of those.

I'm not talking about just Volkswagen. I'm talking about Nissan and Mazda and many of those vehicles that we see every single day on the road that are not employing any Canadians at this time.

[Laurel Collins, NDP, Victoria, BC]

In 2015 Export Development Canada made Volkswagen a $526-million loan to help it consider doing business with Canada's auto-parts makers, as it was expanding its operations in the southern United States and Mexico. However, under WTO rules, Export Development Canada can't tie its loans to specific purchases. Unifor was pretty critical of this loan, especially on the idea of helping facilitate the migration of auto sector industry jobs to Mexico or the southern U.S. with no real guarantee of Canadian benefits. Do you think there would have been any compromise to that EDC investment with greater penalties to Volkswagen?

[Ken Bondy]

I am, number one, a big proponent of challenging WTO rules. I am sure a lot of my fellows in this country would agree that we get the dirty end of the stick under WTO.

Some of those things that may not currently be allowed could at least have been used for other initiatives. One of them is end-of-life vehicle recovery. We talk about the circular economy. We could have a kind of reverse of the Auto Pact, such that if you want to sell vehicles in Canada, you must disassemble and recycle them in Canada. Think of the opportunities that could be gained if we had that type of federal law.

[Laurel Collins, NDP, Victoria, BC]

Thank you so much, Mr. Bondy.

I have a question for Mr. Winfield.

You mentioned the rarity of prosecutions, and it has come up a couple of times that Environment Canada enforcement officers have been doing fewer inspections. They did 4,915 inspections in 2014-15 and that was down to 1,600 in 2018-19. The number of investigations has decreased; the number of prosecutions has decreased.

I am just curious as to whether these numbers are concerning to you. Do you think there is a lack of resources, or what is the core issue with the decline in enforcement of CEPA?