Mr. Speaker, the purpose of my speech on Bill C-61 is threefold. First, I will outline what is contained within this bill and what it intends to achieve. Second, I will outline three areas of concern I have with this bill and offer some constructive alternatives to those concerns. Third, I will outline the positive aspects of increasing the monetary penalties for offences dealt with by the courts.
At this time I am not speaking either for or against the bill which leads me to wonder whether I am becoming too much of a politician. For the most part I will be asking questions of the minister. I hope the answers will explain some parts of this legislation which will help me in preparing to deal with this issue in committee and in later debate in this House.
First, I will outline the purpose of this bill. Industry associations have pointed out the need for more equitable enforcement of regulations and more equitable treatment between imported and domestic products. This bill is an attempt to apply consistent standards to both imported and domestic products and to promote the competitiveness of the agriculture and agri-food sector.
To address these concerns the food production and inspection branch has proposed an administrative monetary penalty system to decriminalize certain federal regulatory offences. This bill permits the minister of agriculture, if he is requested to do so, to conclude compliance agreements with those who commit regulatory violations.
The rationale behind these monetary penalties is to use the threat of a financial penalty to obtain compliance rather than to simply punish. The system is based on negotiating solutions to regulatory violations. Monetary penalties range from $50 to $15,000.
Bill C-61 gives the department of agriculture more options and greater authority to enforce relevant regulations. Currently most violations of regulations under these acts are treated as offences and are prosecuted through the courts.
The new system is intended to streamline the process by implementing a ticketing system at ports of entry into Canada and monetary fines for other infractions. Only the most serious infractions will end up being prosecuted through the courts as offences. One important result of this bill could be lowering the number of cases going to court. The end result of a cost saving to taxpayers is of course very important.
Bill C-61 adds to the enforcement options of certain legislation administered by the department of agriculture by allowing a system of administrative monetary penalties to be imposed for these regulatory violations. Under this legislation a violation would result in a ticket or a monetary fine.
For example, a violation could include the failure to meet certain sanitary regulations at a meat processing plant, or the mislabelling of an agricultural product. However, an offence which is considered a more serious infraction of the regulations for imported and domestic products would remain subject to prosecution through the courts. An example of an offence would be taking an animal out of quarantine and marketing it, thus endangering consumers.
Under compliance agreements administrative monetary penalties may be reduced or cancelled if the violator agrees to the actions necessary to ensure future compliance.
Monetary penalties are subject to review by a board of arbitration or a review tribunal. The system of administrative monetary penalties would apply to the following acts: the Canada Agriculture Products Act; the Feeds Act; the Fertilizers Act; the Health of Animals Act; the Meat Inspection Act; the Pest Control Products Act; the Plant Protection Act; and the Seeds Act. Certain monetary penalties already exist within the Departments of Transport and Employment and Immigration. They are also used in the United States and Europe.
I will outline three areas of concern that I have with this bill. I agree with the overall intent of this bill. Reformers favour streamlining a regulatory process to make it work more efficiently and reduce costs. Currently most regulatory violations are prosecuted through the courts. For the most part this a cumbersome and ineffective process. Because there are limited alternatives in the current system to enforce compliance with the law outside of criminal prosecution, minor violations and violators are often ignored.
I have three main areas of concern and I also have three questions, the answers to which could alleviate these concerns. Are the penalties set high enough to be an effective deterrent, particularly to large companies? Why have the ministerial powers been so dramatically strengthened? Why is it the sole
discretion of the minister to appoint and expand the board of arbitration and the review tribunal?
My first area of concern is the size of penalties. Are the penalties set high enough to be an effective deterrent? I agree with the goal of compliance instead of punishment, and this is positive because it will reduce the burden of the courts, but will it also increase the likelihood of violations since the consequences will not lead to criminal action?
Corporations may deliberately engage in minor infractions which are by regulation subject only to monetary penalties and not to court action. The company will therefore simply pay the penalty and in accordance with the changes made in clause 23 have its record wiped clean after five years.
For example, corporations knowingly emit more pollutants into the air than is acceptable under Canada's environmental regulations. Because the benefits to the company outweigh the costs, some companies would rather break the law, pay the minimal fine and continue operating at a maximum profit level.
A solution to this problem would be to ensure that repeat violators will be prosecuted in court. For example, a two strikes and you are out system could be implemented. This means that after a company has received a monetary penalty twice for a violation a further violation would automatically be deemed an offence and court action would be taken.
In order to strengthen the effects of regulatory violations, I would propose that the five year period for retaining records of violation as outlined in clause 23 of Bill C-61 be extended to ten years so a record of infraction takes longer to wipe away.
The second area of concern is that the ministerial powers have once again been substantially strengthened. Clause 5 allows the minister to decide what constitutes a violation subject to monetary penalty and what constitutes an offence subject to the courts.
For example, under the Fertilizers Act the minister can decide whether a violation has occurred which is subject to a maximum fine of $15,000 or whether an offence has occurred which is subject to a maximum fine of $250,000. That is a lot of power in the hands of a minister without precise legislation to guide.
In the case of a violation clause 6 allows the minister to decide who will receive a notice of violation and to determine the form and the content of that violation. Clause 7 allows the minister to make regulations that set penalties for each violation or not to impose a penalty at all. Under clauses 9 to 13 the minister may also make exceptions which would allow a penalty to be reduced or increased.
All of these situations create an opportunity for political favouritism. Companies that are friends of the government could be let off lighter than those that are not friends of the government. If clear guidelines are in place to alleviate this concern, I would ask the minister to provide them to me. If his answer is that an alleged violator can take recourse through a board of arbitration or a review tribunal, this offers me no comfort.
Let me explain by discussing my third area of concern, how appointments are made to these two boards. It is clear there is too much ministerial involvement in appointing and expanding the board of arbitration and the review tribunal.
Monetary penalties are imposed on the basis of absolute liability which means a penalty can be imposed without proving fault. The briefing from the food production and inspection branch of the agriculture department cites essentially regulatory nature of the violations, the relatively modest levels of the penalties and the absence of the probability of imprisonment as factors to support the use of absolute liability. In the real world, though, these penalties are large enough and can be used effectively to punish enemies of the minister.
This legislation states that if an alleged violator objects to the penalty assessment he has received, a review by an appropriate government official and by a tribunal may be requested. This is outlined in clause 9(3) which states a person may request to enter into a compliance agreement or a review by the minister or a review by the tribunal.
The practices of departmental review and review by a board of arbitration and review tribunal were in place before Bill C-61. However, clause 28 of this bill eliminates the ceiling for membership on these minister appointed boards.
Under the existing Canada Agriculture Products Act both the board of arbitration and the review tribunal can only consist of a minimum of three and a maximum of five members, all appointed by the minister.
Clause 28 of this bill allows the minister to appoint an unlimited number of members to these boards. The current process is already open to government patronage. Lifting the ceiling on the number of members to the board of arbitration and review tribunal only allows for more patronage to occur.
Here is another chance for the Liberal government to add to that list of patronage appointments that was presented in the Globe and Mail last week. Is this the intent of this section of the legislation?
I do not believe that there are legitimate reasons for the minister to have sole discretion in appointing members to the board of arbitration and the review tribunal. This direct and deliberate patronage can be avoided by vetting all appointments through the Standing Committee on Agriculture and Agri-Food in an open and thorough process.
Even though this is a Liberal dominated committee, at least it would provide the opportunity for open and honest discussion, the opportunity to critique the qualities of those considered for the appointment.
With respect to the elimination of the ceiling for membership on the board of arbitration and the review tribunal, if the government has a legitimate reason for removing the maximum number of members for the board, for removing the level that was set previously, I would like to know what the reasons are. I ask the minister to provide me with this list of reasons. Next week or sooner would be fine.
As stated in my introduction, the third aspect of my speech will deal with what I consider to be a positive aspect of this bill, that the monetary penalties for offences dealt with through the courts have been strengthened.
For cases involving a gross offence, the department still retains the option of criminal prosecution through the courts. In such cases administrative monetary penalties will not be imposed.
Fines proposed for indictable offences have been drastically increased. For example, clause 52 increases the maximum penalty for an offence under the Fertilizers Act from $500 to $50,000 and for an indictable offence from $2,000 to $250,000, a substantial increase. Strengthening these penalties may increase the deterrent to breaking Canadian regulations. Reducing regulatory infractions through deterrence is a positive goal.