Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 12 - Evidence - November 17, 2009
OTTAWA, Tuesday, November 17, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:21 p.m. to study Bill S-212, An Act to amend the Canadian Environmental Protection Act, 1999.
Senator W. David Angus (Chair) in the chair.
[Translation]
The Chair: Good evening everyone, and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Senator David Angus. I represent the province of Quebec in the Senate, and I am the chair of this committee.
[English]
With me are the members of this committee: Deputy Chair, Senator Grant Mitchell from Alberta; our valued staff from the Parliamentary Library, Sam Banks and Marc LeBlanc; Senator Tommy Banks from Alberta; Senator Bert Brown from Alberta; Senator Daniel Lang from the Yukon territory; our very able clerk, Lynn Gordon; Senator Lorna Milne from Ontario; Senator Judith Seidman from Quebec; and Senator Richard Neufeld from British Columbia.
This committee generally examines legislation in matters related to energy, the environment and natural resources. This evening, we will deal with Bill S-212, an Act to amend the Canadian Environmental Protection Act, 1999. I believe its source, as we will hear later, is founded in a report of this committee that was made after a review of CEPA, 1999. The report was tabled in the Senate in March 2008, at a time when the Honourable Senator Tommy Banks was chair of this committee. One of the recommendations made in the report is this private member's bill sponsored by Senator Banks.
We are pleased, senator, that you could be with us tonight. This bill has had earlier trips through the system, but I believe it is the first time it has made it to this committee. It was introduced in two previous Parliaments. However, in both instances it was read a first time before dying on the Order Paper with the dissolution of Parliament.
This evening, the bill is here before the committee. Senator Banks, would you like to come to the front?
The Hon. Tommy Banks, sponsor of the bill: I am comfortable in my usual spot.
The Chair: Not only is Senator Banks an active member of this committee and its steering committee, but he believes in this bill. Senator Banks, do tell us what the bill is all about.
Senator Banks: Honourable senators, before I talk about the substance of the bill, I would like to make a couple of points about procedure. The steering committee determined that we would hear today from me as the author of the bill and from Ecojustice. Next Thursday, we will hear from government officials and then proceed with clause-by-clause consideration of the bill. I have sent a request to the chair, deputy chair and clerk that we reconsider the clause-by- clause consideration for next Thursday. The amendments I need to make in the present bill are not as easy to make as I thought they would be, and every time I turn a corner, I bump into something else that needs to be taken into account.
I am hopeful you will agree to deal with clause-by-clause consideration in a couple of weeks and not on Thursday. It will still be valuable to hear from government officials on Thursday. They will be able to help me formulate the amendments that need to be made.
The Chair: My understanding, Senator Banks, is that this morning, we received notification to that effect. I do not think we have any issues with that. For the information of other members of the committee, we will deal with witnesses from the Department of Justice on Thursday morning.
I would like to add my welcome to those in the room and to all of our viewers watching us on television on the CPAC network as well as the World Wide Web. You will find this is a little different from our normal procedure because one of our own is presenting his bill. We will deal with it as one would expect colleagues to deal with another colleague's legislation.
Senator Banks: There is one other small procedural item I would like to point out. Ordinarily, the sponsor of a bill makes an introductory speech on the bill setting out reasons and the purpose for the bill. That senator has a maximum of 45 minutes to speak.
Through a couple of procedural errors, that did not happen with this bill. When I rose to make my speech at second reading, the comment was made that if I spoke at that time, it would have the effect of closing debate, which is the normal rule of Parliament if I had been speaking for a second time. However, I was not. An examination of the record will show that I did not have the presence of mind at that point to say that was not the case.
Senator Comeau rose at that point and said he would appreciate the chance for the critic of the bill to speak to it, and I said — the record will show — that is fine. I would defer my speaking until after the critic, Senator Lang, had spoken. I bugged Senator Lang about when he would speak. He told me one day that he would speak near the end of the subsequent week, which he did and for which I am grateful. Thereupon, and quite reasonably, he moved that the bill be sent to the committee, which is where we are now.
There has never been an introductory speech about this bill setting out the reasons for it, its provenance, et cetera. Therefore, I will do that for the first time now, Mr. Chair, if I may.
The Chair: Excellent.
Senator Banks: Because we have not heard it.
The Chair: No. The good news is — if I may say as chair — you are not constrained by the 45-minute rule in this case.
Senator Banks: I will not take 45 minutes. I promise that I am too hungry to take 45 minutes at this time.
The Chair: Take the time you need.
Senator Banks: As you pointed out, chair, the Environmental Protection Act contains a provision that requires a regular review by each house of Parliament every seven years. In March 2008, this committee completed the most recent review that commenced nearly two years earlier in April 2006. That report contained 24 recommendations.
Bill S-212 implements two of the recommendations having to do with encouraging public participation in the enforcement of the provisions of the act. The committees of both the House of Commons and the Senate, heard undisputed evidence that the original provisions of the Canadian Environmental Protection Act intended to engage the public in the enforcement of the act have been — to put it most kindly — ineffective. By and large, the public does not participate because the costs of doing so are too great. In addition, the burden of proof and the lack of access to adequate information prevent private actors from mounting successful actions.
In that study, which took nearly two years, we focused in on some very specific aspects of CEPA and we also heard peripheral evidence. I took some time to find out about the epidemiological aspect of the private participation in CEPA, which was always intended to be there in the act — the effectiveness, the efficacy.
Public participation in CEPA is an essential part of a comprehensive strategy to protect our environment by ensuring compliance. The importance of public participation in compliance and enforcement was acknowledged in the original act, which was introduced by a Conservative government two decades ago, in 1988. Those provisions were strengthened in 1999 and Parliament has subsequently endorsed that approach.
In the present bill, I am merely proposing to improve the relevant provisions so they are more likely to operate as Parliament intended in 1988 and again in 1999. "Between the cup and the lip, there is many a slip," as the saying goes; not everything that is intended by Parliament always ends up happening because it sometimes becomes watered down somewhere between the intent of Parliament and the application of the legislation.
As you mentioned, chair, I tabled the report of this committee in the Senate on March 4, 2008. The Senate endorsed the report and, therefore, the recommendations that were in it, by adopting the report on April 15, 2008.
Some of the recommendations in that report called for government action. Some of that action has been taken. A few of the recommendations called for amendments to the act, which is the reason I have proceeded with a bill.
I will read the two recommendations from that report that would be implemented by Bill S-212. Recommendation 14 concerns a process under the act called "environmental protection action," and the need to address the unrealistic burden of proof that has rendered the provision practically inert. The recommendation contained in the report of this committee is as follows:
The Committee recommends that CEPA 1999 be amended by removing the need for a citizen to show that an action has caused significant harm to the environment before being able to proceed with an environmental protection action.
I am assured by those I have asked that the person or citizen concept in the act, as in the Criminal Code, refers to individuals and organizations. When we say "citizen" and "person," we mean both individuals and organizations, as in criminal law.
Recommendation 15 concerns the facilitation of private prosecutions by allowing the splitting of fines and the recovery of costs in line with the regulations that we find already under the Fisheries Act and which have been there for 30 years. Recommendation 15 in our report is as follows:
The Committee recommends that the Government of Canada amend CEPA 1999 to permit fine splitting and court cost recovery in cases of private prosecution.
If I may, I will give you an overview, senators, of what exactly is contained in this bill. Clause 1 removes the condition that an environmental protection action may only be proceeded with where the person pursuing the action can demonstrate, and I quote this from the extant act, "significant harm to the environment."
The applicant would still have to make his or her case but this bill would remove a barrier that has effectively prevented any successful actions by private prosecutors under the act. There has not been one since 1988. It was Parliament's intent that there should be those actions; I do not know of one such action.
Clause 2 is a consequential change. It removes the phrase "significant harm" where it appears in another section. I will be referring to these clauses in more detail later when we refer to the bill. Clause 3 ensures that the limits on prosecutions that apply to the Crown also apply to private prosecutions. These limits include provisions to ensure that frivolous prosecutions do not go forward.
Clause 4 permits the splitting of fines, so that one-half of the fine paid is given to the private prosecutor in the same manner that we find in regulations governing private prosecutions under the Fisheries Act. There has been concern expressed by some — including Senator Lang — that this would lead to an inundation of the courts with frivolous undertakings that might even be profit driven. In 30 years of the existence of that provision in the Fisheries Act, that has never happened because there are constraints against and very significant penalties for frivolous prosecutions under environmental law.
Clause 5 allows the court to award costs to a private prosecutor and makes an additional consequential change to the splitting of fines. Clause 6 adds private prosecutors to the list of persons with standing in court to make an application for a variation of an order given by the court, relating to an action under the act. The capacity of private prosecutors to make such an application is limited to the actions that they have prosecuted themselves. I will be referring to that clause in a little more detail in a minute.
Clause 7 and clause 8 are both transitional and deal with the disposition of cases that are ongoing, if and when this bill receives Royal Assent.
The case for action was made to us most persuasively by Robert Wright, who was then with the Sierra Legal Defence Fund. As we have been discussing, that organization, as I think most of us know, has been renamed Ecojustice. We will hear from them in a moment.
When Mr. Wright appeared before us, he urged us to make the public participation provisions of the act meaningful. Talking about CEPA he said:
. . . bring it in line with our major piece of federal pollution prevention legislation, the Fisheries Act. To make them equivalent and bring in a fine-splitting provision would encourage citizens in appropriate and reasonable cases. These provisions are strictly monitored by the Attorney General and the courts. . . . This change would be a nice way and an easy way to make them much more effective, bring them to the public's knowledge, and allow the public to participate.
Colleagues, you have all heard of the mouse that roared. I would like to draw your attention to a recent paper by Hugh Wilkins and Elaine MacDonald of Ecojustice entitled The Lion that Squeaked: CEPA, Mercury, and the Need for Better Regulation and Enforcement. The paper outlines a number of issues concerning meaningful public participation. For example, the paper highlights systemic barriers to public access to detailed information, which effectively prevents private interveners from meeting the burden of showing "significant harm" imposed on them by the act.
Let me quote a key passage from the paper:
CEPA includes provisions for an "environmental protection action," which theoretically permits citizens to sue for damage to the environment. To bring such an action, citizens must first request that the Minister of the Environment investigate an alleged offence under CEPA and second show that the Minister then has failed to conduct the investigation and report on it within a reasonable time, or that the Minister's findings from the investigation were "unreasonable." If the citizen succeeds in meeting these conditions, he or she then has the task of proving that "significant harm to the environment" has been caused. Due to these onerous requirements, no environmental protection actions have ever been brought under CEPA.
I think that is wrong by one.
The track record on actions pursued by the Crown is not encouraging, either. According to the paper, there have only ever been 34 convictions under the act since 1998, which means either there are very few CEPA infractions, which would be wonderful, or we do not have sufficient enforcement. I note that the paper goes on to highlight the onerous costs of pursuing private actions and it calls for the implementation of fine splitting and cost recovery so that private actions can become a reality, as set out in the act in 1988 and again in 1999, rather than merely a theory.
Honourable senators, this committee is not the only committee to be persuaded by these arguments. The House of Commons Standing Committee on Environment and Sustainable Development also conducted a review, which it does every seven years. Its report endorsed the strengthening of public participation measures. The House of Commons adopted its report on May 2, 2007.
The committee of the other place reached conclusions similar to our own. It cited the government's own evaluation report, which was called Formative Evaluation of CEPA 1999: Environment Canada. The report acknowledges that, to quote that government report:
The public participation provisions have not yet been triggered, as no relevant public applications for investigation or public environmental protection actions have been received. . . .
That is not because nobody has tried. It is because doing so has been rendered virtually impossible for an organization or an individual.
The committee of the other place, in its twenty-eighth recommendation, called on the government to consider implementing fine splitting, as well as other measures, to fund private intervention. The government response was tabled in the other place on October 17, 2007. With respect to recommendation 28, the response constituted a single noncommittal sentence: "The government will conduct further analysis to ensure that CEPA 1999 continues to support effective public participation."
Senators, I do not see how you can continue something that never started.
Honourable senators, CEPA 1999 was first introduced, as I said, in 1988 by a Conservative government. Amendments to it were introduced in 1996 but they died on the Order Paper in that session. In the subsequent session, it finally received Royal Assent in September 1999. One of its goals was to reinforce the concept of public participation that was already included in the 1988 act introduced by the Mulroney government. The underlying motivation of both the Progressive Conservative and Liberal governments has been to facilitate public participation in the protection of the environment generally and in the enforcement of CEPA particularly.
Regrettably, we must recognize that the objective of empowering the public was virtually disembowelled in the design of the act.
From a decade of experience with revisions to the act that were designed to improve public participation, we know that the intent of the changes of 1999 did not reach their goal. Not a single private action has succeeded.
Indeed, so far as we know from the government's own publications, only one environmental protection action has ever been attempted. More than twenty years ago, in 1988, Parliament embraced the principle that the public should be empowered to protect the environment. It is a pillar of the Canadian Environmental Protection Act, 1988. Parliament reaffirmed that commitment to public engagement in 1999, but the legislation has never performed as Parliament intended.
It is now time with this bill to simply implement Parliament's intent and your committee's recommendations, so that the Canadian public will finally have the capacity to participate fully in the protection of the environment. I ask your support for this bill.
Senators, I ask you the turn to the bill. I will finish shortly, chair, but I want senators to know what we are talking about. If you look at Bill S-212, which I hope you have before you, on page 1, I want clause 1(1)(2) to stay in the bill as it is. Page 1, clause 1(2) I want that to stay in the bill where it is.
The Chair: It has the words underlined, "is alleged to have".
Senator Banks: I want that to stay. I am coming now to where I will propose amendments. On the same page, clause 1(2), the underlined words are "any harm" and "caused by the commission of the offence. . ." That section I want to stay in the bill.
Page 1, clause 2 reads:
2. Section 29 of the Act is replaced by the following:
29. The offence alleged in an environmental protection action is to be proved on a balance of probabilities.
I want that to stay in the bill.
The Chair: In this last piece you read, the word "is" is underlined. Are those the only amendments to the original act?
Senator Banks: No. It does change that word. The original wording is "The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities."
This bill seeks to remove the requirement for demonstration in advance of significant harm. The present act requires that you prove the offence before you go to trial, in effect.
We get to page 1, clause 3. We need to delete it, and I will be proposing an amendment to delete clause 3 of the bill. One of the questions I will be asking the government officials is when Bill C-16 might be brought into effect. We have passed it; it has received Royal Assent but it is not in effect. The argument has been made that there is a conflict between Bill S-212 and Bill C-16. There might be, if Bill C-16 ever is brought into effect. My only comfort is that I have successfully written a bill that has been passed by both Houses of Parliament that says if it does not come into effect in 10 years it no longer exists. I do not want to wait 10 years for Bill C-16 to be brought into effect.
The Chair: To clear the air on Bill C-16, that is a bill that came recently before this committee. It has duly gone through all the stages and has received Royal Assent but is not in effect. Why?
Senator Banks: It has that horrible thing at the end that says this act will come into effect on a date and time to be determined by the Governor-in-Council. Sometimes there is a good reason to pass legislation like that. In this case, I am not sure of the reason. That is one of the questions I will be asking the government officials.
The Chair: Do you have a point of order, Senator Lang?
Senator Lang: This is not necessarily a point of order; it is a point of clarification. When the bill was passed, it was made clear it was not coming into effect on the day of proclamation because regulations had to be drawn up and certain operational changes had to be made to facilitate the changes that were brought about in the significant changes that were brought in.
I think you will hear tomorrow that the government intends to bring in a good portion of it this spring and the balance maybe in the summer or fall, so there is a six-month to twelve-month lag as they put it into effect.
I do not think the point should be left here that the government does not intend to implement the package they brought in. They intend to implement it, but it has taken time to do that.
The Chair: I think the record is clear with both of your positions.
Senator Banks: That leads to the question of when and how often we ought to pass framework legislation and the rubber will hit the road later and we will tell you how. That is another question.
Based on the assumption that Bill C-16 will be brought into force in the foreseeable future, I will be bringing forth an amendment with respect to Bill S-212 that will delete clause 3 on page 1.
The Chair: It is just these words, "Subsection 275(1). . . . the whole thing will come out.
Senator Banks: It will come out, because I am assuming the act will be brought into force and that is recent legislation.
I want to remind senators that Bill S-212 was written and introduced into Parliament some time ago. Subsequent to that, Bill C-16 was introduced. There are things in Bill C-16, including this, and there is no point in trying to redo legislation that we have recently passed. I will be proposing to delete that from the bill.
Senator Milne: When you say you are deleting clause 3, you are deleting the whole thing, including the first eight lines on page 2?
Senator Banks: Yes, all of clause 3 will be deleted.
The last two lines on page 1 and the first eight lines on page 2 would be deleted. I will bring that forth in the amendments, but I will do that carefully because it has to take into account the other legislation.
On page 2, in clause 4, I will be providing a proposed amendment to you within the next couple of weeks to make accommodations with other legislation because clause 4 of Bill S-212 conflicts in a degree with some aspects of Bill C-16 and several other pieces. I will be proposing an amendment to clause 4.
Page 2, clause 5, is a new subsection. It does not amend anything; it adds one. I want that to stay in the bill.
On page 2, clause 5(2) is what amends 291(1)(m). I will prepare an amendment to delete that clause because one of the provisions of Bill C-16 was to amend the Canadian Environmental Protection Act, 1999, by removing paragraph 291(1)(m). It no longer exists, and we cannot amend part of an act that no longer exists. It is gone. I will be proposing an amendment in that respect.
On page 3, clause 6, it has been called to my attention that the existing draft of Bill S-212 before you is not clear in the words:
. . . . after hearing the offender and the Attorney General, or the offender and the private prosecutor, as the case may be. . .
My intent in that clause is to include the private prosecutor, not exclude the Attorney General. The effect of the amendment I will bring will be to ensure that, in the case of a private prosecution, the court may, on application by the offender, hear from the offender, the private prosecutor and the Attorney General. The way it is worded now makes it look like it is exclusive, and I want it to be inclusive.
In all other respects, senators, the basic premise, which is to make less onerous the costs and the difficulties of private prosecutions under CEPA, need to remain in order for the bill to be effective.
The Chair: Does that include the fine splitting aspect?
Senator Banks: As I said, I will be proposing an amendment to make that more consistent. The present provision will not work as it is, in my view, because of subsequent changes to other legislation, so I will redraft it and try to make it consistent with other legislation.
The Chair: If I understand well, to be slightly trite, you are both amending and commending.
Senator Banks: Commending to your attention.
The Chair: And commending the government for having gone part of the way.
Senator Banks: Exactly. The government, since this legislation, has done things that are pleasing, and this bill now needs to be adopted in order to consider those things.
Senator Neufeld: Senator Banks, would it be better if we listened to the testimony from the ministry after you bring your amendments, or do you want to ask them questions before you draft the amendments?
It becomes rather complicated trying to figure out exactly what will be on the paper. I am asking if it would be better if we did it that way. Give me your thoughts on that.
Senator Banks: I would prefer both. I would like the opportunity to meet with the committee and hear from the Justice officials about some questions I have to ask about consistency, and then I will do my drafts, because that will inform me and I can do the drafts better. We well may wish, depending on what we think about the amendments, to hear from the Justice officials again, and I am sure they would be happy to come any time we want.
Senator Neufeld: That makes good sense to me, too. It is tough to debate or to have much discussion about this bill this evening. We should wait until we talk to them.
The Chair: We have another witness who will tell us more.
Senator Lang: I want to make an observation, and I say this with no disrespect. We are dealing with a bill that has come to the committee through the house, and then substantial proposed amendments will come forward in respect to what is being presented. I find it confusing because we know that existing legislation has been proclaimed and will be implemented in the course of the next six months to a year.
The Chair: Just on that, I think the correct terminology is that it has had Royal Assent, but it has not been proclaimed. When it is proclaimed, then it will be in effect.
Senator Lang: I apologize for the terminology. I appreciate the work that has been done on this, but I think that we all should take a step back and realize that new legislation has come through both houses. This bill that has been on the Order Paper, I gather, for three years, and obviously, it is not drafted the way it should be in light of the new legislation. It would be preferable to look at the new legislation, and then, if amendments are necessary, they could be brought in reference to the new legislation.
Senator Banks: That is exactly what I am proposing to do. This bill precedes the government legislation.
Senator Lang: Mr. Chair, I understand that. I am saying that I would have preferred to see this bill updated to reflect the changes that have already taken place, instead of us having to redraft the bill in committee.
The Chair: If I may, Senator Banks has apologized. He did not know until between the break and today that so many amendments were necessary because of the interplay of Bill C-16 and other bills. Senator Banks recognizes that it makes it more complicated. Senator Neufeld has made the same point. Your point is noted, and we will hear the other witness, in any event.
Senator Banks: Just on that point, as the chair has said, I knew that amendments had to be made. I thought they would be fairly simple. I found out, when I started to think about the amendments that I thought would be simple, that if they push in here, then they bulge out over there. They are not as simple as I thought. I could have brought them today, because I have had them prepared for a few weeks, but we would have to mess around with them here. My proposal is that I come before the committee with amendments that will be easier to deal with, because we will not have to amend them because they will take into account the things I have bumped into.
The Chair: I need to point out something, if I may, as chair. We are running the risk of over-complicating it. I understand that in Beauchesne, the rules governing our procedure, it states that if you are removing a whole clause, which is the intention of two of the proposed amendments, it is not necessary to amend it to do that because you can deal with that at clause-by-clause consideration. That is according to Beauchesne 698(6), so that goes some distance towards simplifying it.
Senator Banks: When we come to clause-by-clause, we will simply vote "no" on clause 3. It is not an amendment by itself. The only amendments are the ones that I have described and am coming back to fix.
Senator Mitchell: I have been following this debate, and the upshot of the comments by Senator Neufeld and Senator Lang would be to delay this process. Senator Banks is saying he would like to keep the momentum. I would like to jump on that side and say that I think it important that we keep the momentum. One reason bills like this get on the Order Paper for years and never get off is that we have elections and prorogations, and things get partway through and then have to start all over again. It becomes frustrating for anybody who wants to move this kind of legislation, and eventually, in our tenure here, we will all probably be confronted with that challenge.
I would say that we find a way to make this work. We can work with Senator Banks to smooth out some of the wrinkles and difficulties and keep the momentum going. If it gets insurmountable at some point, fine, but I do not think it will. We have tremendous resources and a desire to work together on this committee and make things work.
The Chair: If I can again say this, Senator Banks has brought in this proposed legislation to simplify the public taking action under the Canadian Environmental Protection Act.
The present law has quite an onerous burden of proof, and that is the main substance, I think, of what Senator Banks is trying to do with this bill and he will tell us about the enforcement provisions. We have agreed to delay clause- by-clause study; otherwise, we are not delaying anything. We will hear these witnesses today and on Thursday, we will hear from the department. We will hear whether they are in favour of the changes. We will get their comments, and we may or may not be persuaded by what they have to say. Maybe a couple of weeks later, you will come back and we will bring them back again. I think the process shall continue.
I think we all recognize that it is a little more awkward than you had intended it to be or that I would like it to be because of these amendments, but that is what it is. What we are doing is not delaying anything. We know the substance. Senator Lang has given a learned speech on this subject; I have it in front of me. We know exactly what certain flaws are in the bill from your point of view and, perhaps, from others' points of view.
I believe the questioning by Senators Neufeld and Lang was on procedural points. You are on the list still. Did you want to question Senator Banks on the substance of the bill?
Senator Neufeld: I think you have encapsulated it very well, chair. I was not trying to delay anything but was trying to get clarification from Senator Banks about how he assumed this would go ahead because of the difficulty to which he referred. I am quite fine with going that way; I do not have a problem with that. In fact, as Senator Mitchell said, I think we should keep on going with it and get it to some place where it is acceptable and can be worked on. I think that is normal. That is fine.
The Chair: You have no questions for Senator Banks on the substance.
Senator Neufeld: No.
The Chair: Senator Lang, do you have any questions on the substance?
Senator Lang: We have a witness here, so I would ask that we proceed with the witness.
The Chair: I will go around the table first.
Senator Banks: I am a witness.
The Chair: Senator Banks is the witness. If you want to cross-examine him, now is your chance.
Senator Neufeld: We will have a chance after it is amended.
Senator Lang: Since there are substantive changes, once I have clarity on what the bill is, then we can proceed accordingly. There are principles here. At that stage, we can discuss those principles, for example, whether we agree with fine splitting. That is very significant. What effect does it have on the environmental development fund? All those things come into play. I think probably the other witnesses will clarify that as well, and at that stage, we can discuss that.
Senator Brown: I think Senator Neufeld and Senator Lang were thinking the only thing that I was thinking, too, on the deletion. It is easy to read the first time, but then when you try to read it with the deletions out, you begin to muddle your own thoughts on it. If we had a clean copy, there would be nothing else to prevent us from going forward with the substantial parts of the bill.
The Chair: Senator Milne, do you have any questions?
Senator Milne: No.
The Chair: You do not have to step down. Rather than adjourn or suspend, at this point I would simply ask our next witness, from Ecojustice, Ms. Marlene Cashin, to come to the table. Cashin is a famous name in Newfoundland. We will have to find out if it is the same Cashin.
Good evening, Ms. Cashin. Welcome to the Standing Senate Committee on Energy, the Environment and Natural Resources. You have been sitting on the side and have been hearing what this is all about. You can ignore my comments, if you want, about antecedents of your family name. That is up to you.
Marlene Cashin, Staff Lawyer, Ecojustice: Thank you very much. I think you are right. Everyone knows everyone else in Newfoundland. I probably am one of those Cashins.
The Chair: Richard Cashin?
Ms. Cashin: I think we are distant cousins, although he denies knowing me.
The Chair: I am sure it is mutual.
If it helps you, Ecojustice, formally Sierra Legal Defence Fund is Canada's leading non-profit organization of lawyers and scientists devoted to protecting the environment.
Ms. Cashin, I understand that you have been with Ecojustice Canada since November 2007. Prior to that, you were counsel with the Canadian Environmental Law Association for a period of time.
Ms. Cashin: Thank you very much. I am presenting joint submissions from Ecojustice Canada and the Canadian Environmental Law Association. I will refer to them as CELA today and have done so in the written submissions.
Ecojustice Canada is an independent, non-profit organization supported by 30,000 Canadians. We have a staff of lawyers and scientists who provide services to citizens and groups working to improve environmental laws. Since forming in 1990, law reform and litigation around the protection of the environment have formed the core of Ecojustice's work.
CELA is a public interest law group founded in 1970 for the purpose of using and improving laws to protect public health and the environment. Funded as a legal aid clinic specializing in environmental law, CELA represents individuals and citizens' groups in the courts and before tribunals on a wide variety of environmental matters, including cases involving pollution prevention.
The Chair: Without interrupting your chain of thought, you might want to put that in perspective. We have heard from Senator Banks that no one takes environmental action because it is too complicated. Obviously, from what you have said, many actions are being taken.
Ms. Cashin: It is true, but not many have been taken under CEPA. Perhaps some have been taken under the Fisheries Act, which I will come to a bit later.
The Chair: Or the Canada Shipping Act?
Ms. Cashin: And before tribunals as well. There is a great deal of work to do.
Ecojustice and CELA support the enactments that would see CEPA amended to remove the requirement that an individual show that an alleged offence under the act has caused significant harm to the environment. I will speak to that briefly, but I would like to focus on three other areas. These comments will be subject to the amendments that Senator Banks has mentioned. I am not sure exactly what those will be, so I will focus on broader issues.
The other issues I wanted to speak about are costly private prosecutions, the issue of fine splitting in private prosecutions and limitation periods, but that may not be necessary.
First, on significant environmental harm, Bill S-212 proposes to remove the requirement that an individual show that an alleged offence under the act caused significant environmental harm to the environment in order to proceed with an environmental protection action. As Senator Banks mentioned, it has been a concern of Ecojustice and CELA for quite some time, and other environmental lawyers, that the issue of "significant harm" and proving it before things can move on has been a barrier to the participation by the public, citizens and environmental groups.
The Chair: Again, on that, I am hoping you will flesh it out. Some other members of the committee have some legal experience; the deputy chair and I are practicing attorneys. It is not clear on the face of it, why that would not be such a barrier.
Well, he is a practicing attorney in my view because he knows so much.
Senator Mitchell: Thank you.
The Chair: The public and the layperson might simply wonder why one would take action if there were not a significant danger or environmental harm. If there is, then it is res ipsa loquitur. We need to know why that is such a barrier. I am sure you can tell us.
Ms. Cashin: It is exactly our concern. We think that CEPA is an important and serious piece of legislation. The aim of preventing pollution is a big one already.
We are assuming as lawyers that if you commit a CEPA offence, it is serious and has caused significant harm. It is understood that a CEPA infraction is serious. Therefore, to have that up front could discourage a citizen from moving ahead with a private prosecution, especially a citizen who does not have the benefit of a lawyer's advice. For instance, one can simply swear information, for instance, without having much legal advice. The act says you can do it.
However, this would tell them that they have to prove significant harm up front. I can give you anecdotal evidence from speaking to clients and the environmental legislation we have in place in Ontario, which has a similar provision. No actions have been taken under "significant harm to a public resource. This is an indication.
The Chair: I do not like to do this because there are not many clauses in the bill. Is the word "significant" the hang up? It seems to me that if there is environmental harm, it is evident. What is significant? How white is white? Perhaps, you can flesh that out. If there is pollution, mercury poisoning or so on, it seems that it will be obvious.
Ms. Cashin: There are bigger barriers than this particular barrier. However, every barrier has to be overcome in people's minds or financially. Anything that creates a barrier between the private citizens' confidence to participate in protecting his or her environment should be wiped out. If it is not needed for some other reason, it is a small thing we could do quickly to remove the discussion of what is significant harm.
The second issue is costly private prosecutions. From our point of view, private prosecutions are important processes whereby the public can become directly involved in protecting the environment. Both federal and provincial legislation contain provisions concerning the ability to bring a private prosecution, authorizing the Attorney General to intervene and to stay a case. However, numerous obstacles associated with these types of prosecutions stand in the way of pursuing violations of environmental legislation. Commentators have remained consistent in their view that private prosecutions are costly, difficult and loaded with hazards. One commentator noted that the weak spirited need not even try.
Various authors have written about the need for strict enforcement and zero tolerance in environmental offences. John Swaigen, for instance, said that prosecution is underutilized. He emphasized that:
. . . prosecuting flagrant environmental offenders is also the right thing to do. It is likely that every prosecution has a ripple effect throughout the industry and that a single prosecution has a much greater deterrent effect on other potential offenders than administrative remedies.
Prosecutions, no matter who brings them, are an expensive matter.
Bill S-212, for private prosecutions, proposes a fine-splitting clause that would require that any fine obtained following a private prosecution would be split equally between the prosecutor and the Minister of the Environment or the provincial government in cases where the provincial government paid the expenses incurred in the prosecution. It also proposes to authorize the court to order the offender to compensate a private prosecutor for the costs of undertaking the prosecution.
The heavy burden of the cost of prosecution can be alleviated to some degree through the introduction of measures such as the proposed fine-splitting provision included in the bill. As was mentioned earlier, similar provisions are currently being utilized in the Fisheries Act regulations that encourage the public to participate in the protection of community resources. The inclusion of a provision under CEPA in relation to private prosecution would perform a similar function to provide incentives for citizens to pursue this type of case.
Common criticisms of individuals and environmental groups who pursue private prosecutions are that they are bounty hunters involved in the proceeding to obtain some sort of windfall or profit. This description of private prosecutors in environmental cases greatly mis-characterizes the reality of the situation, certainly based on our knowledge.
Time and costs associated with bringing a private prosecution are immense. These include not only legal fees, but costs of private investigations into the offence as well. A recent story in an environmental legal newsletter by Dianne Saxe illustrates the time and number of court appearances involved in an average prosecution as follows:
Average prosecutions in Toronto now take 239 days, after the charges are laid, and 11.7 court appearances, according to the Ministry of the Attorney General. Unsurprisingly, cases move a little faster outside Toronto. In the Ottawa region, for example, the average charge is resolved in 193 days after 8.7 court appearances. These statistics are for all criminal cases; environmental charges often take longer than average.
Suggestions that fine-splitting provisions might motivate the initiation of frivolous litigation where private citizens prosecute in hopes of making a profit do not reflect realities on the ground. Such criticisms fail to recognize the risks of being unsuccessful or having the prosecution stayed and not receiving any compensation whatsoever.
I have examples of cases. In a well-known case, R. v. Sault Ste. Marie (City), the prosecution was under the Ontario Water Resources Act. It started out as a private prosecution that was taken over by the Crown. This case provides a clear example to substantiate the position that private prosecutions are neither frivolous nor vexatious.
The case of Fletcher v. Kingston (City) dealt with depositing of toxic leachate from landfill into a waterway. This case is regarded as one of the most successful private prosecutions with $120,000 in fines ordered against the City of Kingston. In spite of this victory, the financial toll that these proceedings took on the citizens was tremendous. After nine years of investigations and litigation, including subsequent appeals, the private citizens prosecuting the offences ran out of resources and were forced to settle.
In addition to compensating private citizens for their efforts in pursuing environmental prosecutions, awards from fine- splitting provisions may also have the effect of ensuring that future violations are pursued. For example, in the case of R. v. The Corporation of the City of Hamilton, Lynda Lukasik, a private citizen, laid a charge against the City of Hamilton for letting toxic leachate seep from a dump into the Hamilton harbour.
She was awarded $150,000, one-half of a $300,000 fine, under the fine-splitting provisions under the Fisheries Act. Her share of the money paid the costs of the investigation and the prosecution, with the balance going to local environmental prosecution and advocacy work that is setting up Environment Hamilton, a not-for-profit organization. A small pool of that money remained in an environmental justice fund. It was set up to provide financial assistance to community members in the Hamilton area who, for example, may use the fund to hire an expert for an environmental law case or to send samples to a laboratory to be analyzed.
We would like to comment very briefly on the issue of regulations. Even if CEPA currently allowed for regulations directing where or how proceeds from fines may be distributed, the regulatory authority has not been exercised to date. In our view, there is no operative conflict between this bill and the current CEPA regulation making provision for that reason.
As I mentioned earlier, I would imagine all these things will be fleshed out in the amendments.
The last issue I would like to speak to is the limitation period. During the second reading of the bill, Senator Lang, in his reference to the limitation period, preferred the Bill C-16 amendment, which established a five-year absolute minimum period, subject to the prosecutor defendant waiver of the limitation period.
Ecojustice and CELA have preferred the Bill S-212 approach, which provides that the two-year limitation period only begins to run when the minister or private prosecutor becomes aware of the material facts regarding the alleged CEPA contravention.
In Ontario, this discoverability principle is well known. With the Bill C-16 amendments, the time frame is longer but the fixed term is arbitrary and provides, we think, a perverse incentive to defendants to conceal the offence for the duration of the limitation period in that, as long as the defendant can hold out for five years and one day, they cannot be prosecuted under CEPA.
Second, we believe it is unrealistic to believe that any well-advised defendant would voluntarily waive a limitation period defence, especially given the steep penalties, such as large fines and jail terms, available under CEPA. We think that the fairer and more balanced approach, more consistent with the overall purpose of CEPA, is the one that is followed in Ontario, under Ontario's Environmental Protection Act. Therefore, if discoverability can work in Ontario, where environmental prosecutions are more frequent than what we have seen under CEPA, there seems to be no reason why it could not work under this bill.
In conclusion, as mentioned earlier, the fine-sharing regulation already exists under the Fisheries Act. The existence of such legislation, in place for some 30 years or so now, has not resulted in a flood of numerous or frivolous private prosecutions, as pointed out by Senator Banks.
We believe that without a mechanism to facilitate private prosecutions, such prosecutions are less likely to proceed, and the societal objectives of punishment, rehabilitation and deterrence of environmental wrongdoers are less likely to be achieved, especially when federal prosecutions under CEPA are increasingly rare.
CELA and Ecojustice are firmly of the view that both Environment Canada's and the public's capacity to enforce CEPA should be strengthened and that Bill S-212 provides for amendments that will add tools to assist in the removal of barriers to environmental protection actions.
Senator Brown: During your first statement, you used the word "prevent" environmental harm, and I wonder how you can actually prevent it. I understand you can punish it and hope that it will not be repeated, but I do not think the law "prevents." Most of the environmental stuff I have ever seen was accidental to begin with. I wonder about using the language, "prevent," with this. I think it is more an accident, in most cases.
You pointed out some cases about cities that have dumped sewage and I would call that deliberate, because they knew they were doing something wrong. We have seen accidents. Just recently, 5,000 gallons of gasoline was spilled, but it was done in an automobile accident. Is there a distinction between accidental and deliberate?
Ms. Cashin: I think that the preventative aspect of CEPA and prosecutions under it would be deterrents. If a company knows that it can be fined, and if it or its neighbours are regularly fined, prosecuted or found guilty of offences under CEPA, I think it is much more likely that those companies and certain industries will be much more careful about their daily practices.
Some environmental offences are accidents, but some are accidents waiting to happen because of carelessness. Money talks: If you fine companies, prosecute them, and create a stigma, it does make a difference.
Senator Neufeld: I want to go back to "significant" because I am having a little trouble with that word. I am not too sure it should not stay as "significant." The part about having a frivolous charge could even be a large group charging some poor individual who, by accident, did something that has done some environmental harm. However, the ministry, through CEPA, can actually take care of that through fines, if something was done on purpose.
I am almost thinking "significant" means this protects the big guys. I think "significant" actually protects the average person from being charged with something they really did not intend to do but which happened. Who determines what the heck "significant" is? That is difficult. Also, who determines what is not "significant"? How many angels dance on the head of a pin?
You can argue either side, but maybe just give me a little bit more information on why you think that should not be there at all and what the repercussions would be on the individual. Let us remove from our minds big companies with great big pots of money because that is what some people think. Let us think about the individual. Perhaps a farmer is farming alongside urban areas that are intruding into farmland. Someone living there could say, "Hey, I do not like what that farmer is doing and I could charge that farmer." Pretty soon you have harassment of farming.
In British Columbia, we had to bring in a bill, the Farm Practices Protection (Right to Farm) Act, simply because of urban encroachment on farm areas, even though we have the Agricultural Land Commission. You cannot easily get land out of the agricultural land reserve in British Columbia. I can guarantee you that. In fact, it stays about the same as the number of hectares in the agricultural land reserve when it was put in place in the 1970s. That proves that the system stays, but there is still encroachment. Those people that encroach do not like farmers.
I am not trying to pick on the farming, but there is a whole host of things.
Ms. Cashin: There are enough systems and protections in place that prevent frivolous prosecutions. The Attorney General has the power to intervene and stay a proceeding. The Attorney General will look at any case that is brought forward. To see whether something has had an effect, I would suggest that you look at the sentencing. For many Criminal Code provisions, there is strict liability. It does not matter whether you meant to assault me or you did not; if you did, you did, and at sentencing, we will talk about your penalty.
Having "significant harm" up front does put a large onus on someone to have his or her case practically proven ahead of time. As I said, there are bigger barriers to public participation, but I do not think this one would have serious repercussions if it were removed.
Senator Neufeld: I am not sure I agree with you that the Attorney General would look at all of those cases. Attorneys general have a lot of work to do. They are pretty overloaded in my province and the one next door. I do not know that attorneys general would be able to insert themselves in any one of them just to help a frivolous case.
I do not have a problem with "significant environmental harm" because there are options for individuals to go to ministry folks who actually enforce CEPA, the Fisheries Act and the environmental protection laws in any province, territory or jurisdiction. If you went to an officer and had a case that was pretty cut and dried, it would be hard for that officer not to take it forward. In fact, it would be almost impossible because then you could prove that person was negligent in his or her duties. I do not think anybody wants to get into that position. We can probably argue about "significant" for a long time, but those are my opinions.
I have one more question about fine splitting. I am not sure I agree with fine splitting. It can be left up to the court to decide how that can be distributed, because there can be different amounts awarded, depending on the costs. Also, in Bill C-16, it says in part that the money, instead of going to the treasury, where it gets into that black hole and it never gets out to where it should be, actually goes to a fund that is administered that has to go to the remediation of the environment.
Are you saying we should not have that? Should we say to the government, take the money, put it in general revenue? Should we leave it up to the individual? What about new groups sprouting up because of fine splitting? People like you already keep people on their toes. We can have hundreds of groups funded by these fines and not be looking after remediating the environment, which I think we should be doing with those fines or parts of them. That still has to be enacted. It is in the amendments that are coming forward. The act has not been proclaimed.
Ms. Cashin: I do not agree with funds from these sorts of cases going into general funds. Neither CELA nor Ecojustice would be happy with that. Fine splitting, as is allowed for in the Fisheries Act, has been a factor in the public participation in environmental actions. I believe it because I have seen cases of it on the ground. We have been involved in cases where that is true. If a client comes to us and knows of some offence or pollution problem, almost invariably you will look to see if there is a Fisheries Act offence rather than a CEPA offence because the Fisheries Act enables people to participate. It is expensive for a private individual or an organization to be involved. Legal fees are not cheap, as you know, and investigations, sampling, those sorts of things in environmental cases are expensive.
Judges have the discretion to award costs to different places. The R. v. Bata Industries case from a long time ago awarded part of a fine to a local group. Judges do this in sentencing or decisions; it is part of judicial discretion.
Where Bill C-16 was an improvement is that fines that came to the Attorney General or Environment Canada would now not go directly into the Consolidated Revenue Funds and that is an improvement. There may not be such a conflict between these two bills in that respect as you would think.
Senator Lang: To clarify for the record, the organizations that you represent agree with the premise of the Environmental Damages Fund that has been set up for the purposes of CEPA. The monies from a fine go into that particular trust fund and are used for the remediation of the environment; is that correct?
Ms. Cashin: Our preference would be to see it go into an environmental fund for environmental rehabilitation, yes. We do see some problems with that because it goes directly into a community where remediation may be needed but it may not help individuals to pursue future prosecutions, for example, or be involved in a further way.
Senator Lang:To clarify for the record, again, I am going on memory here and perhaps you can help me because you are involved in this all the time. In the previous legislation, the fine was minimal for an infraction against the environment. I believe, if I am not mistaken, $10,000 was the maximum. Since that time, with the changes that have been brought forward, the fines have been dramatically increased if infractions take place. The minimum is $5,000 but it can go as high as $6 million depending on the size and scope of the environmental damage that has been done. I am right on that, am I not.
Knowing that, and knowing that now we are talking not $10,000 for the purpose of splitting a fine, we may be talking $4 million, that brings it to $2 million for the purposes of a successful private prosecution. All of a sudden, it does become very attractive, depending on the situation that has developed and what is presented. The point I am making is that I think in the context of talking about fine splitting, we had better understand the implications of what we are dealing with in respect to possible private prosecutions.
Would you agree that if there is $4 million out there, it could be attractive to take a prosecution on, especially in view of the fact that also, if this legislation is passed, the court can award costs?
Ms. Cashin: I would say that $6 million is far out of the range of anything that we have ever seen and is likely to be so far out of the range of anything we will see. I will give a recent example. We just had a fine in the Suncor case, and British Petroleum was another. These companies were fined much lower amounts than that. Had there been private prosecutors involved in those cases, the costs would not have been diminished. The cost of bringing the case is the cost of bringing the case, no matter what the fine at the end of day.
Under the Fisheries Act, which is not, I understand, included in the Bill C-16 amendments, we have never seen any evidence of frivolous cases being brought. It is speculative, without any evidence, to say that because a fine will be bigger, that groups or individuals will be lining up to participate in protecting their environment, especially for windfall reasons. We just have not seen that. That is all I can say.
Senator Lang: We have never seen fines this high in legislation either, and they are not in effect until the legislation is proclaimed. I would put for consideration of members that it is something we will have to take into account.
I want to emphasize that I am not saying a private prosecution would necessarily be intentionally frivolous. I want that clear for the record. I wanted to see how the system works. The point is that if I am a private prosecutor, I can bring an action forward. If I understand correctly, if the Attorney General takes it on and is successful, the prosecutor that initially brought forward the complaint, even though they have not taken it through the court system themselves, would be eligible for 50 per cent of the fine because they brought forward the action.
Ms. Cashin: Several things can happen. It can be brought to the attention of the Attorney General that an offence has occurred. The Attorney General can take on the case and carry the case, and then the private informant withdraws from the case or is told that the Attorney General will take it from here. Also, the Attorney General can take it and stay the matter and work out some sort of remediation or decide with the company that these are things that they will do, sometimes plead to a fine of a certain amount and remediate an area, that sort of thing.
The Attorney General has a great deal of say at the front end about what happens when information is sworn. However, at the back end, as well, once an offence is found to have occurred and a fine is in place, the judge, with the Attorney General and with the private informant under Bill S-212 would still have discussions, unless the regulation saying where money is to be allocated is subject to that provision. If it is subject to the provision that the first 50 per cent goes to the private prosecutor, then there would be a difference.
Senator Lang: We have agreed that the Environmental Damages Fund premise is a good principle, and it is one that is in the process of being instituted. That is where the money will go if there is a fine, as opposed to the Consolidated Revenue Fund. If we are splitting fines, my understanding, and perhaps you could comment on this, is that 50 per cent would go to the private prosecutor and 50 per cent would go to the minister. That would mean that it would go into general revenue and not the trust fund.
Ms. Cashin: I do not think that is necessarily so. I do not think it would definitely go into a consolidated general fund just because the Attorney General was participating in the action. If Bill C-16 operates the way it should, that will not happen. It will go into the environmental fund.
Senator Lang: Have you looked at that particular aspect of it?
Ms. Cashin: I have, briefly. I have not looked at what amendments would need to be made to ensure that the two are not in conflict.
Senator Lang: If we go with fine splitting and accept that premise — I have a lot of problems with the principle, whether it be in the Fisheries Act or here, but that is a separate issue fundamentally — then it does take away from the premise of the initial bill that was passed by the House of Commons and the Senate in June where the monies from all fines levied would go into the Environmental Damages Fund. In view of that, would we not then be taking perhaps significant amounts of money and putting them elsewhere other than into the fund? In view of the amounts of fines that have been passed and will be put into effect, we are talking substantial amounts of money.
Ms. Cashin: I come at this from a different angle. Fundamentally, my issue is, what can we do within CEPA to encourage public participation? We have seen, under the Fisheries Act where fine splitting is allowed, that people are involved. Citizens do come forward on important cases. Sometimes the attorneys general have taken on those cases and moved forward with them. Sometimes companies plead guilty, and sometimes they go to trial, but things move and citizens are involved. I think we are better for that involvement.
Perhaps as a lawyer I should be more concerned about all the issues around trying to match this act with Bill C-16, but I think if there is a will to do these things, they will be done. I see a provision for fine splitting in CEPA as something that would encourage public participation. I do not believe that we will get a bunch of people bringing frivolous actions simply for the money. If those cases do come up, I believe the attorneys general will exercise their right to stay prosecutions, stay matters, negotiate or do whatever they have to do. I do not think it will open any more floodgates this way than happened with the Fisheries Act.
Senator Lang: I thank the witness for commenting. I want to reiterate the reality of the fines that will be levied and the amount of the fines, and I do not necessarily agree that it will not be an incentive to move on a prosecution.
I could not help but think this bill is probably meant for the South, where people are sophisticated and are able to take actions. However, in more remote parts of the country, I suspect that the officials of Environment Canada and DFO look after the public interest. If they see anything untoward, if they know of any pollution going on, the government is the one that takes action.
What is your experience in this regard? Do you find it is quite a dichotomy between the South and the more remote areas? I have never heard of anybody in the North taking action, and I cannot conceivably see people taking action because they really do not have any money to begin with. They do not really know the system; nobody knows that they can take action. Do you have any comment on that or experience in this regard?
Ms. Cashin: I would say that some of the people who have been involved in private prosecutions are sophisticated, as you have put it. Others are not at all. They are just ordinary people, not always in cities, that have noticed that there is a huge problem and have gone after it.
It costs a great deal of money, and it takes lawyers and investigation. However, the easier that you can make it for people to bring a private prosecution — give a little incentive, perhaps, that would reimburse them for their costs of being involved — I think you will encourage it. It does not matter where you find people.
Senator Sibbeston: Is your our organization sufficiently well known throughout Canada so that if someone sees some pollution going on that they think is not right, they will call your organization to help them out in this? Who is your clientele? Who do you actually help? Is it just people in the South primarily? Have you had any experience in prosecutions or actions in the North?
Ms. Cashin: Ecojustice has been expanding into different areas. We have recently opened an office in Alberta. One of the first cases that the Alberta office was involved in was helping private clients bring information under the — I am not sure if it was the Fisheries Act, sorry. It was the dead birds and the Syncrude situation. The Government of Alberta took over that prosecution and moved forward with it.
As an organization, we cover the country as well as we can. People can contact us from anywhere in the country. CELA, whom I am making this presentation on behalf of as well, is restricted to Ontario, generally speaking, except in law reform because they are an Ontario legal aid clinic; but we do take requests and phone calls on a daily basis from people all over.
Senator Lang: When we talked about fines, I have just received some information that should be entered into the record. I just want to give you an example of the changes in the fine structure. This is primarily not just for us; it is for the viewers. Minimum fines for certain offences — for shipping, the second offence — it is a minimum fine, not maximum. The second offence is $200,000 plus, and it can go as high, depending on the case and what you are dealing with, as $8 million, not $6 million. The numbers are increasing.
I am not saying necessarily it will happen, as you said. However, I think it is something we have to take into consideration because things are changing dramatically with the change in CEPA, the bill we put forward in the spring — and will change.
The Chair: You are not expecting an answer to that or you are?
Ms. Cashin: I think fines are a great thing.
Senator Sibbeston: My question has to do with the sensitivity or the willingness of officers to deal with matters that need to be dealt with. These provisions of having private citizens being able to take actions are a bit unusual in the sense that really it is the government's job. They have officers out in the field.
What is the background of giving the ability to citizens to take action? Is it because the government officials cannot see everything that is going on or be aware of everything that goes on? Is it just because the environment is of such a nature that it is empowering private citizens to be concerned about the environment and take action?
From the Northern perspective, it is most unusual. We do not have any legislation whatsoever where community people are empowered to take such actions. Charging people is a very big thing. Only the RCMP brings charges; that is our experience in the North. To charge somebody, particularly companies who generally are very big and strong and have a lot of money, is most unusual.
What is the background to giving citizens the ability to take actions such as this on the environment?
Ms. Cashin: While it may be unusual for citizens to participate, the ability is there in federal and provincial legislation. Under the Fisheries Act, for instance, any citizen can bring an action.
I think the whole idea around the recommendations that came out of the reports of this committee and that were mentioned before, the two recommendations of public participation were part of those 24 recommendations. It is a movement. It is not just government's job to enforce environmental law, and it is not the purview of any one province. It is an ability that we all have.
These amendments and other legislation that has come forward recently — and the Fisheries Act in particular — are all attempts to encourage public participation. People need to be involved. They cannot stand back anymore and say government will take care of it.
Government is overworked. It may be that they are doing a good job or not doing a good job, but resources being what they are these days, I think it will take all of us to look after the environment.
Senator Sibbeston: This is just a statement. It is probably a reality that civilization in the South has really been hard on the environment. When you have cities, you take away lands and you need a lot of water and so forth. Any industries that operate require water, and they pollute; but in the more remote areas of the North, this has not happened. There is not that fight.
There is still a lot of good land and water in the North, in the remote parts of our country. Therefore, the issue between industry and people is not as intense, except for places like Fort McMurray, the oil sands. There is a tremendous amount of activity and it is affecting the land and waters. We are concerned in the Northwest Territories about the effects of the water from that development.
I think it says something about our Southern civilization. To a certain extent, we have really wrecked the land, or have been hard on the land. Conversely, in the North, we still have a lot of land and waters. We do not have any industry, and so things are somewhat pristine.
The Chair: Can we hold you to that, Senator Sibbeston? This is quite a new perspective coming from you.
I will leave the last word for Senator Banks. It might be worth incorporating into your final questioning what Senator Sibbeston was getting at. To me, it is not a South/North issue but a mentality that Big Brother is out there to look after us on these public issues.
I see the cases Ms. Cashin has quoted about environmental damage in the Hamilton Harbour. If it damaged my property, I would take a civil action. I would hire a lawyer, sue, and get my costs and my damages. However, why would I become this sort of altruistic citizen who will suddenly go and do the job of the government at his or her own expense? I do not get it, personally. I think that is what was striking the pensive man from the Northwest Territories.
Senator Banks, I think you know the answer. I hope you do because, otherwise, I have a terrific problem with this question.
Senator Banks: I will have to rely on my memory as it was a long time ago and I cannot quote you chapter and verse. I have never thought of Senator Sibbeston as pensive, though.
The Chair: Neither have I, but I am watching him on the monitor. He looked very pensive.
Senator Banks: When we were looking at this before, my recollection is that there have been a few instances in which First Nations, for example, have initiated actions under the Fisheries Act in the North. Therefore, I think the short answer to the question is that there are just as many unsophisticated people in the South and there are just as many very sophisticated people in the North. I do not think that people in the North are in the slightest bit unsophisticated, particularly when it comes to the environment. If I recall correctly, there have been cases of First Nations having initiated actions under the Fisheries Act, under the provisions that our guest has talked about. I wish I could name them, but I seem to remember them.
I have a couple of questions for our witness. Thank you very much for being with us and for staying as long as you have. If you are in court, the rule is you never ask a question to which you do not know the answer, but this is not a court and I am not a lawyer.
The Chair: It is not cross-examination.
Senator Banks: Right. Am I right, in your view, that a prosecution by a public prosecutor cannot go ahead without the approval of the Attorney General; am I right that a prosecution by a private prosecutor cannot go ahead without the approval of the Attorney General?
Ms. Cashin: That is right.
Senator Banks: Therefore, no prosecution, private or public, can go into a court without the Attorney General of the respective province or territory having said, "Yes, there is a reasonable prospect of conviction here. Therefore, yes, you may proceed;" is that correct?
Ms. Cashin: The Attorney General has a few options. He or she could stay the whole matter —
Senator Banks: Right.
Ms. Cashin: — proceed and take over the entire case, or proceed with the private prosecutor.
Senator Banks: Right.
Ms. Cashin: There are basically three options.
Senator Banks: My point is that it is not possible for me to bring a private prosecution and escape the scrutiny of the Attorney General in the province in which I live.
Ms. Cashin: No.
Senator Banks: The Attorney General will have it before him or her and will make the determination whether to pass, proceed or stop; is that correct?
Ms. Cashin: Yes.
Senator Banks: Thank you.
Is it possible to give a ballpark cost as to how much it costs a private person to initiate an action of this kind under environmental law? Is there an answer to that, or is it just too amorphous? I am looking for a ballpark figure.
Ms. Cashin: It is difficult to provide a ballpark figure. It depends on how much investigation takes place. The more sampling and the more evidence that needs to be brought forward — actual lab samples and that sort of thing — would increase costs. In preparation, I did speak to some of the prosecutors at the Ontario Ministry of the Environment.
Senator Banks: You mentioned one that is settled.
Ms. Cashin: Yes.
Senator Banks: Talking about that case, would that settlement have covered the costs of the investigation to that point?
Ms. Cashin: In the particular case that I spoke about, the whole case would be investigated. The evidence would be found and the Crown would approach the company, then, and say, "Listen, you will be fined under the act tomorrow. Do you want to talk about settling the issue of the amount of the fine?" At that point, it becomes much easier and much cheaper.
In cases where the company says, "Okay, you have us dead to rights. Charge us tomorrow and we will plead to the charge" and then the fine goes ahead. If we have to go to court and go through 11.7 court appearances after all of your investigation is done and your evidence put together, it will be quite a bit more expensive. I mentioned this in the article from Dianne Saxe, who got the information from the Ministry of the Attorney General in Ontario. It depends on your lawyers, as well, because, as we all know, there are very expensive lawyers and ones who are not so expensive. The figures could vary quite dramatically.
Senator Banks: Speaking of lawyers, you mentioned a couple of names: John Swaigen and Dianne Saxe. For the record can you tell the committee about these two people?
Ms. Cashin: Dianne Saxe is a lawyer who is an environmental specialist. I believe she has been recognized internationally as a certified specialist in environmental law. She writes the Environmental Protection Act, annotated, I believe. She has a newsletter. She is quite knowledgeable and sits on several environmental boards, I believe.
John Swaigen has been a member of environmental tribunals. I actually have a biography on him, if you would like.
Senator Banks: I wanted it spoken for the record to ensure that you have referenced them and these are people who know what they are talking about.
Ms. Cashin: They are both highly knowledgeable and well respected.
Senator Banks: Let us talk about the time limit discovery question. To be fair, I want to ensure we understand that, if I commit an offence and get away with it for five years and one day, I am home free. On the other hand, if I commit an offence — and I want to be sure this is the case — if I am discovered, found out and charged on the fourth year, three-hundred and sixty-fifth day, I am not obviated. The thing can continue on. There is a five-year window during which an action can be initiated and then that action will be continued. It is not cut off at five years; am I right?
Ms. Cashin: No, it is not.
Senator Banks: The only danger with the five years would be particular cases. I am operating a battery acid disposal factory in my basement and nobody knows about it. I sell my house and, six years after I sold my house, the residue is discovered. There is nothing that anybody can do about it in terms of charging me. That is the saw-off. However, on the other hand, if something happens, there are five years during which the discovery can be made and action initiated, and then the clock starts running from that point; am I right? I do not mean the clock, but as long as it occurs within the five years it is okay; is that correct?
Ms. Cashin: It is, as long as it was a one-time offence. If it is an ongoing matter — if the spill is ongoing — then it is an ongoing matter; it happened yesterday. It may have started four years ago, but it is still happening.
Senator Banks: Thank you.
Thank you, Mr. Chair.
The Chair: Is that it?
Senator Banks: That is it.
The Chair: Ms. Cashin, on behalf of the committee, I want to thank you very much for the time you have put in, not only in speaking, but in preparing a very excellent and much more detailed opening statement, in both English and French, than you actually put on the record tonight. We really appreciate it.
Thank you for coming. I am sure Senator Banks appreciates it, especially, in support of his bill.
Ms. Cashin: Thank you for having me.
The Chair: Before I bring the meeting to a close, does anybody have any other business or anything they want to bring before the committee?
I think we know where we stand now in terms of the confusion of the amendments. We have the officials from the department who will tell us how enthusiastic they are — or not — about the bill, and we will just have to play it by ear on Thursday. However, we will not have clause-by-clause consideration.
Senator Banks: I promise to bring the amendments within a matter of a few weeks.
The Chair: I declare the meeting terminated. Thank you all.
(The committee adjourned.)