Environment Committee on Feb. 1st, 2021

[Laurel Collins, NDP, Victoria, BC]

Thank you, Mr. Chair.

Mr. Bondy, you talked about the need for corporate accountability. From Unifor's perspective, do you think that Volkswagen was held sufficiently accountable? If not, what are the dangers of failing to hold these kinds of large corporations to account?

[Ken Bondy]

I don't believe they were held accountable, based on the actions they took. Again, we're talking about a corporation that blatantly lied to the Government of Canada. The opportunity to educate them and assist them in making their product less polluting or environmentally damaging wasn't even an opportunity.

Again, within our law structure, if there was a way in which we could, at the very least, levy a larger fine that would go toward protecting or enhancing the environment in Canada.... To give you a quick example, monies could be used to build a wider infrastructure for zero-emissions vehicles across the country. We know that there are corporations out there. General Motors does business in Canada. They have committed that they will make all-electric vehicles by 2035. Well, that's not going to help Canadians if we don't have the infrastructure to support those vehicles and the people who work in those facilities.

Those fines could be used for enhancement on greater environmental opportunities in Canada.

[Laurel Collins, NDP, Victoria, BC]

Thank you very much.

Madam Gagnon-Rocque, the charges that were laid in the U.S. were actually criminal charges, whereas we laid no criminal charges here in Canada. Also, once the charges were laid, the timeline for the Crown and Volkswagen agreeing on the penalty was very short. Is it unusual to have those kinds of charges negotiated before they're laid?

[The Chair, Liberal, Francis Scarpaleggia]

Ms. Gagnon-Rocque, I would ask you to give a brief response.

[Ariane Gagnon-Rocque]

The Canadian Environmental Protection Act contains criminal offences. While it is true that no charges have been laid under the Criminal Code, the charges are still criminal under the Canadian Environmental Protection Act.

Is this unusual? No.

It's not common for the defence to have access to the evidence before the charges are laid, but it does happen. I wouldn't call it unusual or exceptional.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

The next five minutes are for the members of the Conservative Party.

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

Thank you again to our witnesses.

Madam Gagnon-Rocque, we heard a member of the Liberal caucus—I don't mean to make anything personal—suggest that perhaps we should have a regime legislatively that should force these fines to go to specific ends rather than letting the court, the relevant jurisdiction, decide whether or not that's appropriate and whether or not the Crown should decide to pursue that.

I think the real issue here, and I hope you would agree, is whether or not the fine was sufficient. Even with the changes legislatively that said these monies will go to some environmental action, the penalties, you're saying, it seems to me, were not sufficient. Is that correct?

[Ariane Gagnon-Rocque]

This is such an exceptional situation that it's difficult to find precedents. That being said, I think it's a very severe sentence, if not severe enough. Moreover, I wouldn't allow myself to express an opinion on the subject. It's important to remember that this is something that's been discussed and has necessarily received the approval of the Crown attorney and subsequently the approval of a judge.

I think the sentences have been fairly severe, however it isn't my role to interfere in matters related to prosecutorial discretion in this regard. It's fine to be concerned about where the money from the fines will be directed, whether it will be directed to targeted projects rather than to Canada's consolidated revenue fund.

Court orders directing funds to a specific project are desirable in the circumstances, and these funds can be used to enhance environmental protection. I think the penalties are likely appropriate in the circumstances, despite the huge discrepancy between the penalties in Canada and the United States. We don't have the same system, and it's difficult to compare and, in fact, I don't think we should.

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

Thank you for your explanation on that.

This is with regard to a comment made by Mr. Winfield about the varied application of the law. Again, let's say you have a very localized pollution event. Oil is spilled from a train in an area; it was negligent; CEPA's applied, etc., or some sort of substance...that they be used to remediate and to help deal with the issue itself and to try for some sort of restorative justice, so to speak. How do you do that with fines that some people have described before this committee as not being sufficient and having application right across the country? How would you best say to deal with that?

[Ariane Gagnon-Rocque]

That's an excellent question.

Up to a certain point, I think we're going to have to trust our Crown attorneys, who generally do their job quite competently. When making an order, the judge has the discretion to specify where the funds will go and what projects they will be allocated to.

The case you raised is problematic. If there is an oil spill at a certain location, and legal action is taken, the funds will likely be paid out several years after the spill, so the work to repair the damage caused will already be completed.

We have to take this limitation into account. When we want to allocate funds for repair, it's often already done, because we had no choice to do it before. We also need to think about this when we consider our options.

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

Thank you for that.

Mr. Bondy, thank you for coming before the committee.

Your members compete in what is obviously a very competitive industry. Do you feel that in this case the law was applied equally to you, to a company where your workers work, or do you feel that in this case the government bent the rules for an international company that did not have a significant footprint here in Canada?

[The Chair, Liberal, Francis Scarpaleggia]

Quickly, please.

[Ken Bondy]

Yes, again, I do think the rules were bent. One day we may get to the basis of why that occurred, but if they were going to be applied to domestic manufacturers, then of course all of those regulations and rules should be followed equally, no matter who the manufacturer is.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. Baker, you have five minutes.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

Thank you very much, Mr. Chair, and thank you to all the witnesses for being here today.

My questions are for Ms. Gagnon-Rocque.

Ms. Gagnon-Rocque, you said earlier that the Canadian Environmental Protection Act is a good act, but that we could improve its enforcement. Could you elaborate on that?

[Ariane Gagnon-Rocque]

That's a good question.

I think its enforcement can be improved by ensuring that there are more investigations. There are a number of inspections, but there are very few investigations. There are about 20 a year. I don't think that's enough.

What I see in the enforcement reports is that warnings are used a lot. It isn't necessarily the best option in the circumstances, but it's the preferred option because one of the factors considered in making the decision is the speed of the action. Of course, warnings are the quickest action, but I think it's something that should be avoided in many cases.

I believe more investigations and prosecutions should be undertaken. In cases where a prosecution isn't considered appropriate, administrative monetary penalties should be used. This is a regime that has proven its worth in Quebec. It's quick and allows for imposing a monetary penalty. Of course, the penalties aren't very big, but they can be quite significant.

If there was one change to be made, I think it would be to increase the administrative monetary penalties. Not only should they be used more, but the amount of money being imposed should be increased as well.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

You also said that the certainty of the prosecution is more important than the amount of the sentence.

Is that why you recommend increasing the use of administrative penalties?

[Ariane Gagnon-Rocque]

Yes, absolutely.

It isn't a criminal penalty, but an administrative one. However, it's still a punishment. It has proven itself in many other areas. Administrative penalties bring some certainty about the duty to answer for our actions.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

You said that we shouldn't adopt the U.S. approach to prosecution. Could you explain your comments?

[Ariane Gagnon-Rocque]

Yes, absolutely.

I'll bring you back to what I was saying: It's not the severity of the sentence that deters offenders; it's the certainty of being prosecuted.

Personally, a multi-billion dollar fine doesn't impress me much. I'd be much more impressed by the certainty that criminal proceedings will be taken against offenders. It would be a more positive change than increasing the fines.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

In the U.S., is the certainty of prosecution about the same as in Canada? If not, is it greater or less?

How does the certainty of prosecution compare between the two countries?

[Ariane Gagnon-Rocque]

That's an excellent question. I don't know. I don't know whether my colleagues can answer it, but I don't have any statistics on it for the U.S.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

Thank you very much.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Baker.

We have time for a quick round of questions. So I propose giving three minutes each to the Conservative Party and the Liberal Party, then a minute and a half or two to the Bloc Québécois and the New Democratic Party. Then, it should be 5:20 p.m. or 5:25 p.m.

So we'll start with the Conservative Party.

Is Mr. Albas going to take the floor?

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

Yes. Thank you very much, Mr. Chair.

Mr. Winfield, I know you said that you didn't really want to get into the VW case. However, there are some abnormalities, such as the fact that both VW and the Crown met before a judge before the settlement was reached, those kinds of things.

Are those normal, in your opinion, in CEPA enforcement?