Debates of Oct. 26th, 1995

Agriculture And Agri-Food Administrative Monetary Penalties Act

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

A recorded division on the motion stands deferred.

[The Deputy Speaker]

The next question is on Motion No. 18. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[An hon. member]

On division.

[The Deputy Speaker]

I declare the motion carried.

(Motion No. 18 agreed to.)

[The Deputy Speaker]

The next question is on Motion No. 19. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

Pursuant to the standing orders, a recorded division on the motion stands deferred.

[Elwin Hermanson, Reform, Kindersley—Lloydminster, SK]

moved:

Motion No. 20

That Clause 19 be amended by striking out line 19 on page 11 and substituting the following:

"violation are reviewed by the Minister or by the Tribunal, the Minister must".

Motion No. 23

That Bill C-61, in Clause 29, be amended by adding after line 37, on page 14, the following:

"(3) For greater certainty, no lobbyist or party to a contract with the public service of Canada shall be appointed as a member of the Board or the Tribunal."

Mr. Speaker, our caucus should have discovered the word reasonable a long time ago. Perhaps we would have more good laws passed in the House of Commons. I wish we had used that in Bill C-68, the gun control bill. We probably would not have had registration. And maybe we would not have had Bill C-64 introduced at all.

In any event, back to Bill C-61. I appreciate support from the other side for a couple of my amendments, which were reasonable and included the word reasonable and were adopted by the House.

We have now moved on to the fourth group of motions. I will address Motion No. 20, which deals with clause 19. It strikes out line 16 and substitutes the following: "violation are reviewed, the minister or the tribunal". Currently in this clause it is stated: "In every case where the facts of a violation are reviewed, the minister must establish, on a balance of probabilities, that the person named in the notice of violation".

This ensures that the facts of a violation should be reviewed both by the minister and by the tribunal. It is not a matter of either or, but in fact it is both. This again is a common sense amendment. It ensures that the burden of proof is on the minister in the case of a ministerial review. It ensures that there is burden of proof on the tribunal when a case of a violation is referred to the tribunal. This is just good common practice. It is sensible. It again puts some qualifiers and quantifiers into the legislation to make it not only effective but also balanced and fair.

I cannot see why members on the opposite side would have any problem whatsoever with this amendment. Therefore I encourage them to support it.

Moving on to Motion No. 23 which deals with clause 29, this motion adds after line 37 on page 14 a new subclause (3), which would say: "For greater certainty, no lobbyist or party to a contract with the Public Service of Canada shall be appointed as a member of the board or the tribunal".

The clause prior to that says: "A member of the tribunal shall not accept or hold any office or employment that is inconsistent with the member's duties or take part in any matter before the tribunal in which the member has an interest". We certainly support that clause, but it does not go far enough. All it says is that a member of the tribunal shall not be able to enter into a contract with the federal government. What it does not preclude though is the actual appointment to the board of a lobbyist or someone with a contract with the public service.

We have had a rather negative light cast upon government and upon politicians for quite some time because of the ethics we impose upon ourselves. That perhaps might be better stated as a lack of ethics we impose upon ourselves. Yes, there are conflict of interest guidelines. As you are well aware, Mr. Speaker, there has been some question as to the effectiveness of the conflict of interest guidelines currently, even upon us as members of Parliament. There is concern in the public sector that conflict of interest guidelines be rigid, clear and enforced.

Other legislation precludes members of Parliament or members of provincial legislatures from serving on a board or body such as this tribunal. However what is not precluded is the fact that lobbyists, people who are working for the public service and have a vested interest in the work of the tribunal, are currently not excluded from appointment. This dips into the whole area of patronage appointments that are repulsive to Canadians. It seems that lobbyists have an inside track and are able to have influence behind the scenes far beyond their worth.

I suggest the House support Motion No. 23 that goes one step further than the conflict of interest in clause 29(2) by stipulating that no government lobbyist or person who has a contract with the federal government may be appointed to the tribunal. I appreciate the progress we have made this morning.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I will deal with the two motions in Group No. 4.

On Motion No. 20, again showing how reasonable we are, I agree with the motion. The amendment possibly brings a little more clarity to the bill. It clarifies that the minister carries the burden of proof in both the ministerial review and the review by the tribunal that the person named in the notice of violation committed the violation. This is precisely what the current wording of the bill provides. I have no objection to accepting the proposed amendment; maybe it clarifies the matter a little further. It shows how reasonable we are on this side of the House.

The intent of the legislation is to set up the administrative monetary penalties act. At present an inspector with responsibility for enforcing the agri-food act determines there has been an offence under the statute. There has been much mention that he or she should proceed through the criminal justice system to obtain a penalty for the offence. The inspector must file a complaint with the attorney general who will, where appropriate, commence proceedings against the offender.

Currently whenever a penalty is sought, the entire judicial system must be brought to bear regardless of the seriousness of the offence. The expense and delay inherent in the procedure is often disproportionate to the particular offence. In some cases the fines imposed are very small and in other cases they create a criminal record, which is perhaps too severe a penalty.

In terms of seeking an alternative the government established a system of administrative monetary penalties so that an inspector who determines there has been a violation of the agri-food act could impose a fine on the offender immediately rather than proceed through the judicial system. Basically the government is creating efficiencies in government, being fair and reasonable to all and protecting the interests of the public under the act.

I will mention a couple of points and why the minister must carry the burden of proof. There is a lot at stake and it is important the minister carry the burden of proof. The administrative monetary penalty system will be one that allows the FPI to levy monetary penalties for non-compliance with branch acts and regulations. As has been mentioned by others in the debate, it is less costly, would not tie up the court system and creates a great deal of efficiency.

The administrative monetary penalty system will lead to more equitable enforcement of regulations by allowing the department to take effective action against importers and domestic companies marketing products that do not meet Canadian health, safety and quality standards.

As the system starts to evolve, the industry will recognize the pressure the new system puts on it. The industry will continue to comply with the regulations without having to get into any great enforcement measures. That is important. That is the objective of the system. The criminal prosecution system will remain an option and is available should it become necessary.

It is important that monetary penalties can be offset through compliance agreements. The proposal is to reduce the fine by $1 for every $2 a company spends on new equipment, process changes or staff training to prevent the recurrence of non-compliance. That is also an incentive for the industry to comply with the regulations. In this way the system emphasizes compliance, not punishment for behaviour, which is certainly a great step in the right direction. The administrative monetary penalty system fits with the government's regulatory review agenda to improve regulatory effectiveness and decriminalize most regulatory offences.

The intent of Motion No. 20 is a good one and can be supported. However Motion No. 23 is a horse of a different colour and I cannot support it. The amendment provides that "no lobbyist or party to a contract with the Public Service of Canada shall be appointed as a member of the board or the tribunal".

The bill requires that members of the tribunal have technical qualifications related to the areas of agriculture and agri-food and are not in positions of conflict of interest relative to the matter before them. In addition, it has been clearly set out that no member of the tribunal may be employed in the Public Service of Canada.

The intent of Motion No. 23 is taken care of in other ways. If one were to incorporate the amendment, in essence it would make the legislation more cumbersome. In effect Motion No. 23 is unnecessary and I have to oppose it.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, in dealing with this group of amendments I will address two related and relevant issues.

Our efforts to fine tune the legislation in the House and earlier in committee have been primarily directed toward ensuring a proper balance between the rights and liberties of Canadians in the sector we are dealing with and the administrative exigencies as they evolve in the agricultural sector. Because we are dealing with food, in many cases some of the exigencies tend to be relatively urgent and require a prompt solution as opposed to a slow, administratively cumbersome solution.

As we strive to seek that balance in the House with the legislation, we must keep in mind that the House realizes it cannot, as is sometimes said, micro-manage the sector. We simply do not have the ability to micro-manage in all detail everything that goes on in a particular field. That is why the House by way of regulation delegates authority to administrators in government to make regulations which deal in a more specific way with the exigencies in the field.

Even then it is tough. Even then it is probably impossible to micro-manage. Many decisions that have to be made are being made in a warehouse at a border. Perhaps they are being made in a barn somewhere by inspectors and people who are growing and transporting the commodity. We ought to resist the urge in the House to overly micro-manage the field, and that is why we delegate.

We are trying to find that balance in the House and that is tricky. There is a further challenge for Parliament. Every time we delegate we say that we are giving authority or power to an official of the government. That official, in concert with the department, will be making decisions about property of others and what others can or cannot grow and transport in this field.

The challenge for Parliament is not so much today; it is down the road. We have a committee that deals ex post facto with the regulatory authority delegated by the House, the Standing Joint Committee for Scrutiny of Regulations. The more the House delegates, the more work there is for the standing joint committee. Given the large degree of delegation taking place under this statute, I see a further challenge for the standing joint committee to deal with the scrutiny of this type of regulatory delegation.

One criteria of the committee is described as the unintended or unexpected use of power. I agree it is perhaps a little fuzzy. However, should an official, the department, the minister or the cabinet at some future date authorize the taking of a step that could be construed as an unexpected or unintended use of power, the committee would point it out to the House. The committee also has the power of disallowance which it has used a half a dozen times in the last four or five years. It prefers not to do so. It is a procedure the House would rather not have the committee use but when necessary it does so.

To the extent we are delegating and trying to fine tune that delegation, there will remain to a greater or lesser degree a significant challenge to the committee structure created by the House in reviewing the appropriateness of the use of the authority and power we delegate.

It is not to detract from our efforts here to find the right balance between rights and liberties and administrative efficiency.

I think all members have the same view and I will continue to participate in this debate in the hope that we achieve the proper balance so the administrators, the minister, the deputy ministers, departmental officials and the cabinet will have the right tools and the right balance so our citizens will get the best services and the best considerations under this statute.

[Gordon Kirkby, Liberal, Prince Albert—Churchill River, SK]

Madam Speaker, I appreciate the opportunity to once again address some of the motions by members from the other side of the House in relation to the agriculture and agri-food administrative monetary penalties act.

The purpose of the bill is to allow for expedience and resolution to breaches of regulations in the agriculture and agri-food industry. It is designed to make it a lot easier for the department and those involved in breaches of regulations to resolve their difficulties.

It is designed to ensure we get compliance with the regulations as soon as is reasonably possible. The bill does not inhibit the rights of people accused of violating the respective statutes to have the option to gain the full procedural and substantive protection that can be gained from the law if they so choose to defend themselves in traditional fashion of court hearings and due process. This is still available to those who violate the act.

The purpose of Motion No. 20 according to hon. members opposite is to clarify that the minister and the Government of Canada carry the burden of proof in both the ministerial review and the review by the tribunal that the person named in the notice of violation committed the violation. This is certainly what the current wording of the bill provides for.

We have no objection to this amendment. This is another amendment the minister has accepted from members opposite. This shows a responsible attitude by the minister of agriculture in the sense that where there are amendments that enhance the act, where there are amendments that do not do any harm to what is sought to be accomplished by the act, regardless of who brings them forward, if they improve the legislation and make it a bit clearer, the government is certainly willing to hear them.

The legislation makes clear that the minister carries the burden of proof in both the ministerial review and the review by the tribunal that the person named in the notice of violation is the one who committed the violation. This goes back to one of the fundamental bases of the Canadian justice system of due process. The system is based on many administrative procedural protections granted to people who run afoul of regulatory or sometimes even criminal law.

Our common law system has always sought to protect those accused of violations, whether regulatory offences, criminal offences such as under the highway traffic act, provincial offences or somewhere in between. Our legal system always provides safeguards to the person accused of the violation commensurate with the penalty and the seriousness of the breach involved.

Our justice system on a very fundamental basis seeks to ensure innocent people are not convicted or not held responsible for violations they did not participate in. That is why even within the common law I do not think there is even any need to suggest the minister carry the burden of proof. The state in matters of breaches of criminal violations, regulatory violations and provincial statute violations always carries the burden of proof.

It is probably better that a few guilty people are acquitted rather than innocent people being subjected to the raw power, the sanction of the state when they were not guilty of what they were charged with.

In relation to the first motion, we are accepting it. The fundamental principles of Canadian law that the minister carry the burden of proof is simply a foregone conclusion and one we accept. This is not the case in all countries. Sometimes one is presumed guilty and must prove one's innocence. In Canada, the British Commonwealth system, the common law system, different considerations apply.

Motion No. 23 of Group No. 4 seeks to provide that no lobbyist or party to a contract with the Public Service of Canada shall be appointed as a member of the board or the tribunal.

The government in appointing individuals to these tribunals always appoints well qualified people who are known for their fairness so that people can trust the correctness of the decisions made by these tribunals. Each of these appointments is very carefully weighed. The people must be qualified in order to participate in these issues.

Once again common law clearly requires that people with a conflict of interest not serve on boards or tribunals such as this. As has been the track record of the minister to date in other appointments, as well as other ministers in other departments, the people sought to be placed in positions like this are qualified people. They will carry out their duties in a manner that will respect the government and also the people accused of various violations of agriculture and agri-food penalties.

No one in a conflict of interest will end up on these tribunals. They are quasi-judicial bodies and as a result will have to be above reproach. Common law provides many administrative remedies that could be taken through the courts should there be any reasonable apprehension of bias or other grounds on which the decision of the appointed person could be put in question.

People with these types of connections will simply not be appointed. If a situation arises in which there could be any type of conflict whatsoever, administrative law procedures are available through the courts to ensure people who are being judged in this fashion are fully protected.

While Motion No. 20 says exactly what the bill says and follows the philosophy and basic underpinnings of the law in Canada, the minister will be accepting a recommendation to further clarify and ensure the law is clear and known.

With respect to the second motion, this will be taken care of in the same manner the government has done to date. Remedies are available to anyone who feels aggrieved by a decision, who feels there may be a problem, to deal through the courts with such an issue.

I again thank the minister for his efforts in bringing these changes forward, changes that will certainly improve the-

[The Deputy Speaker]

The hon. member's time has expired.

[John Richardson, Liberal, Perth—Wellington—Waterloo, ON]

Mr. Speaker, I rise today to speak in support of Bill C-61.

This bill adds to the enforcement option available to certain legislation administered by Agriculture and Agri-Food Canada by allowing administrative monetary penalties to be imposed. The bill also authorizes the minister, if requested, to conclude compliance agreements with persons who commit violations.

Under compliance agreements, administrative monetary penalties can be reduced or cancelled if persons agree to take the appropriate steps to ensure future compliance with agri-food acts and regulations. The administrative monetary penalties are subject to review by an independent tribunal. Now every contravention can currently be prosecuted.

The bill gives the minister an administrative option where prosecution is seen to be too harsh a measure. In arriving at his decision the minister will be guided by a compliance and

enforcement policy-I underline the word policy because it gives broader perspectives-that establishes the criteria to guide the department in making decisions on the use of all enforcement controls or options.

The policy is a public document. The choice to be made by the minister of whether to prosecute or issue a monetary penalty is akin to a prosecutorial choice. It is such as we would find in a criminal case in which the decision is made as to whether a matter should proceed by way of indictment or by summary conviction. Because the choice is heavily dependent upon the facts in each situation, flexibility is required. This flexibility is best offered by relying on policy rather than regulations.

It has always been the intention to administer this bill in a reasonable manner. We on this side of the House are happy to accept this approach to the bill. However, compliance agreements form an integral part of the proposed scheme. The object of the scheme is to obtain compliance rather than to penalize the violator. It is a common sense approach to bring those who are the users into a compliance mode without using the heavy hand of the law or penalties.

By authorizing the department to enter into these agreements the bill gives the department a tool to negotiate the implementation by industry of measures that would change the violator's practices and processes. The emphasis here is on change. At the same time, the violator may pay a reduced penalty in exchange for committing funds to effect the necessary improvements leading to future compliance. The bill provides that kind of flexibility.

Compliance agreements result in immediate corrective action which is the desired result of the bill. Of course, immediate corrective action leads to a better product, improved health and safety, and more effective enforcement. Compliance agreements are optional and no one is forced to enter into them. The bill provides an incentive to enter into compliance agreements by making it possible to reduce the amount of monetary penalty.

The nature of the bill is to achieve compliance. For those who do not comply and who are found out, they are counselled into compliance. If they do not comply, the second stage is enacted. The nature of the bill is to encourage people to comply.

Current maximum penalties are relatively modest. The bill does not make a distinction between first and subsequent violations for the purpose of setting a maximum penalty that could be assessed. However, the regulations will determine a base penalty amount and the range and circumstances under which the penalties may be increased or reduced. The regulations will determine a base penalty amount and the range and circumstances. The compliance history will be one of the factors set out in the regulations whereby penalties will be reduced for violators with no previous history of non-compliance. Again, it is the nature of the action. If there is a perceived resistance to compliance the enforcement of the regulation is the only tool the government has.

Penalty amounts may be increased or decreased based on the degree of intention or negligence on the part of the person who committed the violation, the amount of harm done by the violation, and the compliance history of the person who committed the violation. Flowing through this is a series of steps that is known in law as the law of natural justice. Was this a one-shot affair? Was there fair warning? Was there counselling? That is the rule of the land in our country: no one is caught out the first time. In that sense it shows fairness. If it is not fair, the person who is charged has the right to appeal.

I had the opportunity to sit through the clause by clause deliberations in committee. A number of very good concerns were raised, mainly by the opposition but from the government side as well. I see that some of them have been incorporated in this bill. It speaks for the bill having some input from members who are not of the government party.

I see this adhering to the laws of natural justice and due process is outlined clearly in this bill. I would like to review a few points in the bill that may give it a bit more light.

Bill C-61 allows for issuance of monetary penalties on the basis of absolute liability; that is, where the department needs only to prove that an alleged violator committed an act that is in violation of the regulations. The bill does not allow a defence of due diligence by which a violator can avoid liability by establishing that he or she was not negligent.

Under Bill C-61 there is no possibility of imprisonment, no record of conviction for an offence is created, and penalties are modest rather than punitive in nature. Because of these factors, there is no constitutional or other legal impediment to proceeding on the basis of absolute liability.

From a policy perspective, the use of absolute liability is essential to encourage the food industry to exhibit a high standard of care, which the people of Canada expect. This is important for matters involving the food chain and consistent with the approach the courts take in civil cases. The concept of absolute liability is important to the effectiveness of the system as a preventative measure.

Let me give an example of the standards necessary in the food chain. To someone with peanut allergies, even a minute amount of peanut dust is enough to send them into an anaphylactic shock. To such a person, the issue is not whether a company exercised due diligence. When we see the breakout of products, even when we have HP sauce included, it is far more detailed than any other country I know of in this world. As a preventative measure, finding

that a product is mislabelled in not indicating the presence of peanuts in itself warrants finding liability. That is presently in the law.

The focus of Bill C-61 is on preventative and remedial action and not in finding of fault. The use of absolute liability is also provided for in an effective and efficient enforcement system.

The resource base for enforcing regulations is shrinking. Bill C-61 deliberately designs a simple and efficient system to deal with those importers or domestic companies that do not follow our health, safety, and quality regulations. It is worth mentioning that although the due diligence defence does not apply, other common law defences are available to a person to whom the notice of violation is issued.

Bill C-61 is in my judgment a fair bill, presented and debated openly in committee. It follows the natural laws of justice and includes due process. On that basis, I give my full support to this bill.

[Ralph Goodale, Liberal, Minister of Agriculture and Agri-Food]

Mr. Speaker, I have just a couple of brief words about the group of motions we are now considering, Group No. 4, which deals with Motions 20 and 23.

With respect to Motion No. 20, the purpose of this motion is to clarify that the minister of the day essentially carries the burden of proof under this legislation in both the ministerial review process and the review by the tribunal that is proposed under this legislation, the burden of proof that the person named in the notice of the violation in fact committed the violation.

That is how I understand the meaning and intent of the member for Kindersley-Lloydminister in putting forward this motion. I can say without any shadow of a doubt that if I have understood his meaning correctly, that is precisely what the intention of the government is in the wording that is presently proposed in this provision in Bill C-61.

Again in the spirit of co-operation that we demonstrated earlier today in other clauses of this bill, if it is the view of hon. members that inserting the wording proposed in Motion No. 20 clarifies this point, makes it more certain, more definite, I certainly have no objection to accepting this proposed amendment. It is completely consistent with the government's intention in the first place.

I suppose legal scholars and draftsmen could have some interesting discussions about how pretty the language is. Those superficial arguments notwithstanding, the meaning and intent on both sides of the House on this point are absolutely consistent. I have no problem with the amendment the hon. gentleman has put forward.

With respect to Motion No. 23, I do have a problem with this amendment. The manner of appointment for members of the review tribunal by the governor in council that is set out in the version of Bill C-61 that we have before us at the present time follows a well established practice. It is a practice that has been endorsed in this country by the courts of law, assuring the independence of the tribunal from outside interference.

The bill requires very clearly already, without the amendment that is proposed in Motion No. 23, that members of the tribunal have the necessary technical qualification related to the area of agriculture and agri-food and are not in any position of conflict of interest relative to any matters that may come before them for adjudication. In addition, specifically, no member of the tribunal may be employed in the Public Service of Canada.

Those provisions that are already in Bill C-61 adequately cover the point that has been raised by my hon. friend in his Motion No. 23. Therefore I think Motion No. 23 is unnecessary. It could, depending upon legal interpretation, add some uncertainties to a situation, which I am sure my hon. friend does not intend. I presume his intention is to make things more certain and not less certain. With the greatest of respect, we would be better off, in connection to the subject matter to which Motion No. 23 pertains, to leave the draft language as it stands now and reject Motion No. 23. The substance of Motion No. 23 is already otherwise covered in the legislation.

[The Deputy Speaker]

Colleagues, are you ready for the question?