Environment Committee on Feb. 1st, 2021

[Dr. Mark Winfield]

Obviously it's very concerning, because the enforcement threat has to be credible. If you're seeing less and less activity on the part of inspectors out there, that becomes a less and less credible threat.

Similarly—although this has been a consistent problem over time—actual prosecutions, even in the milder form of ticketing as opposed to full-scale prosecution, are still exceedingly rare, so one has to wonder how credible the threat that enforcement action will be taken is. You do see a lot of warnings in some years, particularly in 2017-18, but, again, very few actual prosecutions.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

We'll now begin the second round, but I forget who will ask the first question for the Conservatives.

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

That would be me, Mr. Chair, if that's all right.

[The Chair, Liberal, Francis Scarpaleggia]

You have the floor, Mr. Albas.

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

Thank you very much.

Madame Gagnon-Rocque, you mentioned in your opening comments that the Canadian CEPA enforcement regime is based more on certainty than on severity. What would you say would be the American system for equivalent charges against Volkswagen? Is it a very similar model?

[Ariane Gagnon-Rocque]

Instead, I'm going to talk to you about what I'm criticizing about the Canadian Environmental Protection Act. It should be based on the certainty of being prosecuted and not on the severity of the penalties. There is no certainty of prosecution, and that's what needs to be improved. Research shows that the severity of penalties is a factor, but not the determining factor. In the U.S., the focus may be on the severity of sentences. However, criminological research shows that it's the certainty of being prosecuted, not the severity of sentences, that deters people from committing offences.

I believe that the problem isn't limited to the severity of the penalties and that a difference of millions, hundreds of millions or billions of dollars would not necessarily have changed the situation.

However, if there was certainty of prosecution, even if the fines were lower, the system would likely be better, and there would be fewer environmental offences.

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

Thank you for explaining that. I have a much better understanding of that.

In that case, why do you think the punishment itself was not higher? Was it a failure of the legislation or was it a failure to prosecute the case? Where does it lie?

[Ariane Gagnon-Rocque]

That's an excellent question. I'll honestly tell you that I don't see any problem with the Volkswagen case. As I mentioned, if we had wanted to punish Volkswagen much more severely, we could have. We could have laid more charges and asked for the maximum fines to be imposed. The prosecution didn't do that. I think it was a choice.

As you may know, the prosecution has discretion. I, for one, believe that this is one of the powers that shouldn't be taken away. It's clear that the prosecutor, the Crown attorney who prosecuted Volkswagen, validated the agreement he had reached, probably with his superiors. In my view, that decision has been made, and it's in keeping with a culture that doesn't apply the same rates as in the United States. I have to say I'm pleased about that. We have a very different system from the U.S. system, and we shouldn't try to copy it.

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

Yes. You mentioned there was a choice, and we've heard the charges against VW were structured in such a way that combined models into one charge instead of doing separate charges. Was this appropriate, or should the prosecutor have acted differently in regards to charges?

[Ariane Gagnon-Rocque]

It's difficult for me to comment on this excellent question, but I think it has to do with prosecutorial discretion. It's difficult to interfere with that exercise of discretion.

That being said, should the prosecution have laid a hundred thousand charges? No, absolutely not. That would have been unmanageable. The only choice was to lump them together in some way.

Could more charges have been laid? Yes. Could fewer charges have been laid? Yes. This is probably part of the agreement that was negotiated. However, I don't know, because I wasn't there.

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

Last, do you believe the government took steps to limit VW's liability in this case? That they purposely drew it back, it was not just a simple case of a missed target or a wrong decision?

[The Chair, Liberal, Francis Scarpaleggia]

I'll ask you to respond briefly, Ms. Gagnon-Rocque.

[Ariane Gagnon-Rocque]

It's a difficult question. In my view, the prosecutor is separate from the executive branch. I find it hard to believe that this type of transgression has occurred.

Having said that, I have no information on this and cannot answer.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

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

When I'm faced with a difficult decision, I go with option C.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Albas.

Mr. Schiefke, you have five minutes, please.

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

Thank you very much, Mr. Chair.

Thanks to all the witnesses for being here today.

My first question is for Ms. Gagnon-Rocque.

Ms. Gagnon-Rocque, thank you for being with us today.

The House of Commons has referred the study of the Canadian Environmental Protection Act to the Standing Committee on Environment and Sustainable Development.

What types of changes do you think should be made to improve the administration or enforcement of the act?

You mentioned that you think prosecution is rare. You also stressed the importance of certainty.

Does the bill need to be amended? If so, how can we improve it?

[Ariane Gagnon-Rocque]

You're asking a great question. I'm not sure if it's a legislative question.

To be honest, I think the Canadian Environmental Protection Act is a good act when it comes to penalties. In fact, it provides all the tools we need. Criminal prosecutions, tickets and administrative monetary penalties are in another act, but that's related to the Canadian Environmental Protection Act. It's all there.

What needs to be done is to get at it, and this is where we see a difficulty with the act. It's not being applied to its full potential. The enforcement policy for the Canadian Environmental Protection Act should be reformed to change the order of priority.

I don't have a specific recommendation for amending the act. The penalties are sufficiently high, and there are many options available to the executive to enforce the act. They are simply not being used, unfortunately. It may be more a matter of funding.

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

Thank you, Ms. Gagnon-Rocque.

Dr. Winfield, we know that countries all around the world have a wide range of enforcement regimes in place to ensure the safety of their citizens. Based on the knowledge and expertise that you have, could you perhaps cite a few examples of success stories around the world that you would like to highlight where innovative enforcement practices have resulted in enhanced protection against harmful substances, or that perhaps are not used here in Canada that we could apply to a revised, strengthened CEPA that we're currently working on?

[Dr. Mark Winfield]

I think that probably the most significant component here.... I'll point to a couple of things. One is, in general, the expectation of enforcement. Again, the United States is very different. The U.S. EPA is much more aggressive around enforcement, not just on the criminal side but on the civil side as well, and you see that in the Volkswagen case. That gets people's attention.

At the provincial level in Canada, particularly in Ontario for example, we have moved quite strongly in the area of officers' and directors' liability and their responsibilities there, which again has been very effective in getting companies to establish internal environmental management systems because that becomes essential to defence. If you're an officer or director, you need to demonstrate that you exercise due diligence. Not only having an environmental management system but actually paying attention to the information that's being generated by it and to what your vice-president of environment, health and safety is saying becomes essential.

A third component that I would point to—again, you see this in places like Germany or California—is to not be static about the rules themselves and the standards but, instead, to operate in an environment of continuous improvement. The expectation is that the standards are not going to stay where they've been for 20 years; it's that, in fact, on a cycle of three or five years, we move upwards. Everybody's expectation is that if the technologies are improving and the practices are improving, then the rules are going to move and become more stringent. If you're a smart operator in this space, you're going to want to start to be more proactive, as well, about what is becoming possible, what sorts of practices and what sort of technology are being used here so that you're not static. We tend to stand with the rules once we've set them and not move them.

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

Thank you, Dr. Winfield.

[The Chair, Liberal, Francis Scarpaleggia]

We'll go to Madame Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

My questions are for Mr. Winfield.

First of all, Mr. Winfield, I must say that you are a very valuable man for our committee because you have a wealth of experience.

I'm going to talk to you about health. According to Health Canada, there are 14,500 premature deaths a year due to air pollution and respiratory diseases.

Should the documented knowledge that links health problems to their causes receive very special attention in the review of the Canadian Environmental Protection Act?

Would there be any significant changes to this legislation? What would impact be of incorporating the right to a healthy environment into the act?

[Dr. Mark Winfield]

Health Canada has consistently been the weak link in CEPA. It's meant to cover both health and environment, and that's always been.... There were a few cases with sulphur and gas regulations where they came through, but it's been a notable and consistent gap in the administration of the act. We need to remember that health is part of the goals. It's part of the definition of “toxic”, which puts a substance on schedule 1.

Indeed, many of the key threats, particularly the criteria of air pollutants and conventional toxic substances, are on that list already. With a few exceptions, relatively little use has been made of that authority. A certain number of occasional threats go there, but they do not actually do it.

In terms of a right to a healthy environment, it's complex. I think that there is certainly a case to be made. Many people.... David Boyd has, and Linda Duncan in her previous capacity on the committee did. That would certainly draw attention.

The biggest problem in a Canadian context and a common law context is that it's not clear that the courts would entirely know what to do with that, but it would certainly send a very clear signal in terms of Parliament's intent around the administration of the act.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Collins.