Environment Committee on Feb. 1st, 2021

[Dr. Mark Winfield]

I would need a larger sample and a deeper dig to know the specifics of the procedures that were followed. This is not unknown for there to be negotiations, and at the end of the day it has to be sanctioned by the presiding judge in terms of what is accepted or not.

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

Just by rule of thumb....

[Dr. Mark Winfield]

Even on rule of thumb, without knowing in depth the detail of how these prosecutions are handled, I would hesitate to go there.

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

As a member of Parliament...and I expect that all Canadians would say we believe in the rule of law and that these decisions should be at arm's length.

However, when people ask questions around the process, how best for us to respect the jurisdiction of the court and the decision that was made, and how best to raise some of the concerns—which I guess is what we're doing here—what other mechanisms do you think members of Parliament can have, in order to ask these questions to demonstrate to Canadians that the rule of law is being followed and that the law itself is whole?

[Dr. Mark Winfield]

As you say, I think the exercise we're engaged in here in asking these questions is central to that process, because the message will go through the system that questions were asked.

It's a very tricky space. We do not want to interfere in prosecutorial discretion on the part of the Crown, while at the same time conveying that we would want greater transparency and perhaps a more robust approach to enforcement more generally. I think that's some of the message here. We're seeing ourselves as looking relatively weak relative to the approach taken by the U.S. EPA, which is, of course, a much more aggressive regulator and is backed by state regulators that have incentives built into their system to also be fairly aggressive in how they enforce the rules.

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

I asked this question earlier to another witness.

If you put the Canadian and the American system side by side, could you give a few adjectives or descriptions for both, so people can understand the contrast?

[The Chair, Liberal, Francis Scarpaleggia]

Very briefly.

[Dr. Mark Winfield]

The American system is much more aggressive in its approach to prosecution. It incorporates mechanisms that not only parts of the government can do, but that citizens can do this as well, on their own. NGOs, states, become involved.

Our approach has historically been much softer, and what we see at the federal level is particularly emblematic of that. We have tended to approach these things through negotiation as opposed to prosecution.

[The Chair, Liberal, Francis Scarpaleggia]

Ms. Saks, for three minutes, please.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you, Mr. Chair.

Thank you to our witnesses today.

I will start with a question to Madame Gagnon-Rocque, and Dr. Winfield you might want to chime in on this.

Both of you have indicated that the Volkswagen case is pretty much an outlier in terms of federal cases. You both focused on the fact that the act is a good act and that we have tools in our tool box to have an effective CEPA.

As we're looking forward in improving and enhancing CEPA, what kinds of issues should we be considering, perhaps in the levels of enforcement, from the provincial and federal relationship, or sector by sector?

[Ariane Gagnon-Rocque]

Dr. Winfield, do you have any thoughts?

[Dr. Mark Winfield]

I think a couple of things are coming out here. One is that the tool box, particularly in relation to enforcement, is quite good. The problem here is at the level of administration and policy in how those tools are used by the department. I would keep that in mind. There may not be a legislative fix here in this particular area of enforcement, because the provisions of the act are very comprehensive already.

The levels of enforcement are complicated territory, at least in relation to the provinces. Much of the enforcement effort ends up focused within the federal jurisdiction for a variety of reasons. I continue to be concerned, as I have been for a long time, particularly about the opaque nature of what happens under the administrative and equivalency agreements, where one way or another enforcement administration is effectively delegated to provinces and then the information on what's happening dries up.

As I mentioned before, we're seeing a new round of equivalency agreements come into the equation around coal-fired electricity and methane from industrial sources, which again begs the question: If we accept the provincial regulations as equivalent to what has been done under CEPA, then what do we know about how those provincial regulations then get enforced? At the moment, we seem to know next to nothing, and it's a “don't ask, don't tell” situation.

[The Chair, Liberal, Francis Scarpaleggia]

Ms. Pauzé, you have time to ask a question, then it will be Ms. Collins's turn to ask one.

[Monique Pauzé, Bloc, Repentigny, QC]

Okay, thank you.

Mr. Winfield, you pointed out the lack of enforcement activities, but you have worked for the Commissioner of the Environment and Sustainable Development. Would you agree with reviewing the commissioner's mandate to give him increased powers to enforce the legislation? Would that be a good approach?

[Dr. Mark Winfield]

It's a possibility. I did work in the commissioner's office in 2018 in the case of this audit. I was an external adviser, which the office uses on these sorts of things.

It's complicated. I want to think about it some more. There have been efforts to try to strengthen the commissioner's role. There is push-back within the Auditor General's office about that. It's tricky. There's already an operational function around the petition process, and that's a complicated dynamic inside the office.

We'd need to think about whether you want the commissioner trying to be involved in prosecutions, for example, as opposed to.... Perhaps having a mandate that pushes more in the direction of asking questions about actual outcomes and results as opposed to simply the management and administration of things, because at the end of the day, the mandate is an audit mandate as opposed to one to talk about actual outcomes.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Collins, there's time for one question.

[Laurel Collins, NDP, Victoria, BC]

Thank you, Mr. Chair.

Dr. Winfield, you said we have a different kind of enforcement culture here but we do have identical emission laws in Canada and the U.S. because of the common market. It seems we could potentially use some of them.

We've heard from previous witnesses that those provisions around public participation and enforcement might have fallen short and that they continually fall short. I'm curious how you see those provisions around public participation being used in this case and in general, and what we could do to strengthen them.

[Dr. Mark Winfield]

This goes way back.

The attempt to introduce the kind of citizen suit provision that exists in U.S. environmental law didn't work in CEPA 1999. It's never been used and it's very complicated from a citizen perspective.

There is a request for investigation provision. Again, I'm not seeing much activity there. I think people have found the petition process to the commissioner under the Auditor General's office more useful in those situations, because it compels a response. A lot could be done there, but obviously I'm out of time.

[The Chair, Liberal, Francis Scarpaleggia]

I'm sorry about that, Mr. Winfield.

We have the Conservative Party for three minutes.

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

I'll take that, Mr. Chair.

If you could continue, Mr. Winfield, I'd like to hear the full explanation.

[Dr. Mark Winfield]

I would need to think carefully in terms of how you structure a citizen suit provision in a Canadian context. We have similar provisions in the Ontario Environmental Bill of Rights, and I have to admit they've been equally ineffective and unused.

The request for investigation process is somewhat useful. The crucial thing there is that in Ontario, where we do have that, there is both the compulsion that the department actually give a response, which is quite powerful, and—this is going back to Madame Pauzé's question—the link back to the commissioner, because in Ontario under the Environmental Bill of Rights, once a request for investigation is filed, that opens the door to the environmental commissioner. It used to, and it still does, although the commissioner, of course, has now been embedded into the Auditor General's office, but the statutory provisions are there in Ontario. The commissioner could then speak to how the request for an investigation was disposed of by the department. Did it respond? Was the response adequate?

In Ontario, we have seen cases in which a request for investigation has actually resulted in prosecution. If you look at the former environmental commissioner's reports, you see quite extensive discussions about how the department disposed of this in particular situations, and there is sometimes criticism that perhaps greater action should have been taken.

I think there is space to work on this, and we have precedent. It goes back to the question of how we, perhaps, link the commissioner's role into this more effectively than we have at the moment. At the moment, there's a firewall between the commissioner process and the CEPA process. There might need to be a bit more of a linkage made somehow around those provisions.

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

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Finally, we have Mr. Longfield for three minutes.

Go ahead, please.

[Lloyd Longfield, Liberal, Guelph, ON]

Thanks, Mr. Chair. There's a lot of very good discussion.

I want to start with you, Mr. Winfield. You mentioned in an earlier part of the meeting the sectoral analysis. I'm hearing the need for a more stringent enforcement mechanism to come through. Maybe not more stringent, that wasn't the word. It was more frequent or more predictable or knowing that somebody would be looking at you if you were not following the laws and regulations.

How could this be tied in by sector? I'm thinking of our climate change goals by sector. Transportation has certain goals. Industry has certain goals. There are certain goals for buildings. Would it make sense to tie these in proportionately to the larger emitters, or how would you look at prioritizing?

[Dr. Mark Winfield]

Again, that's a complicated question. To a certain degree the CEPA regulations themselves are organized by sector. Typically you're dealing with a quite distinct class of source of problems with each regulation, so that in and of itself helps to give you some boundedness. It comes back to your question about what we mean by risk-based approaches. Does this mean you go for those that you see are presenting the largest threat? That's one possibility, the big sources. The tricky part with that can be that you don't necessarily want to ignore the cumulative effects of a lot of small sources, which can add up to a big problem if you're dealing with thousands of those as opposed to one big one. You can end up with a problem just as big. It's a tricky set of balances in terms of figuring out where you want to put your effort.

The other thing I'd emphasize about risk-based approaches—and I think in Ontario the situation of long-term care has demonstrated some of the risks with those—because, of course, this was something the Auditor General told the province to do and then they discovered it wasn't doing proactive work at all. The problem with risk-based approaches is they can be backwards-looking. You're looking at what went wrong before, as opposed to looking forward to what might go wrong in the future. You want to be very careful about that.