Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 12 - Evidence - November 19, 2009

OTTAWA, Thursday, November 19, 2009

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 212, An Act to amend the Canadian Environmental Protection Act, 1999, met this day at 8:05 a.m. to give consideration to the bill.

Senator W. David Angus (Chair) in the chair.


The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is David Angus. I am a senator from Quebec. I am chair of the committee.

To my right is the deputy chair, Senator Grant Mitchell, from Alberta. Going around the table, we have our able representatives from the Library of Parliament, who help us in our deliberations, Sam Banks and Marc Leblanc. To his right we have Senator Tommy Banks, our featured senator here this morning, who will be dealing with his private member's bill. To his right is Senator Bert Brown, from Alberta, and Senator Richard Neufeld, from British Columbia. To my left is our clerk, Lynn Gordon; Senator Robert Peterson, from Saskatchewan; Senator Judith Seidman, from Montreal, Quebec; and last, but not least, from the Yukon Territory, Senator Daniel Lang.

We are continuing our study this morning on Bill S-212, which is a private member's bill, An Act to amend the Canadian Environmental Protection Act, 1999, sponsored by Senator Banks from Alberta.

I say this not only for the people in the room, who all are welcome this morning, but also to our viewers on the CPAC network and to anyone who is joining us via the World Wide Web. Welcome to all. The purpose of this bill was explained in detail by Senator Banks earlier this week. At that time he indicated that it would be further amended to take into account recent legislation that would have made certain clauses irrelevant or redundant.

This morning, we have invited witnesses from Environment Canada to share their comments on the bill, to give Senator Banks an opportunity to explore with these witnesses some aspects of the bill and to enable senators to see what the view of the government is on this private member's bill.

Without further ado, I would like to introduce our three witnesses. Thank you for coming, and you are most welcome at our committee. We hope to see more of you. There are three of you: Athana Mentzelopoulos, Acting Director General, Legislative and Regulatory Affairs; Renée Caron, Executive Director, Legislative Governance; and Nancy Klenavic, Policy Analyst, Legislative Advice Section.

Do you have a statement?

Athana Mentzelopoulos, Acting Director General, Legislative and Regulatory Affairs, Environment Canada: I will be making a statement, and my colleagues will assist me in answering questions.

The Chair: Please proceed, then.

Ms. Mentzelopoulos: I am honoured to be with you today to talk about Bill S-212. As I mentioned, after I make opening remarks I will be assisted by my colleagues, Ms. Caron and Ms. Klenavic. They have legal training, so they can help address my shortcomings in that regard.

As this is a Senate public bill and not a government bill, it would not be appropriate for me to address the policy objectives of Bill S-212. Instead, I will provide our overview of the bill and make specific comments about particular clauses and then respond to questions.

Senator Banks, I apologize: some of my comments may be repetitive of your own statement on Tuesday.

Senator Banks: I have to hear most things at least twice.

The Chair: I am glad you made that comment, because that indicates to me you three witnesses have had an opportunity to see the transcript and to be aware of what Senator Banks stated.

Ms. Mentzelopoulos: Yes. Generally, Bill S-212 proposes amendments to the public participation provisions in Part 2 and Part 10 of the Canadian Environmental Protection Act, 1999, which I will refer to as CEPA.

First, the bill makes an amendment to the requirements for bringing an environmental protection action. Environmental protection actions, EPAs, are currently provided for under sections 22 to 40 of CEPA. EPAs are a form of public participation in the enforcement of CEPA by which Canadian residents may bring a civil proceeding against an alleged offender in certain narrow circumstances. A person may exercise this right only if he or she has already applied to the Minister of the Environment for an investigation of the alleged offence under section 17 of the act and the minister has either not responded to that application or responded unreasonably. Furthermore, the proceeding may be launched only if the alleged offence has caused significant harm to the environment. The offence must be proven on a balance of probabilities.

To date, no environmental protection actions have been launched pursuant to these provisions.

With respect to environmental protection actions, Bill S-212 would remove the requirement that the alleged offence caused significant environmental harm.

This bill also makes amendments to CEPA related to private prosecutions. Pursuant to section 504 of the Criminal Code, any person who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information and thus institute a prosecution. In such a case, that person is considered a private prosecutor. He or she may carry out the prosecution him or herself, or, like private prosecutions related to any other act, it may be taken over or stayed by the Attorney General.

Bill S-212 makes a number of amendments to CEPA related to private prosecutions. It introduces what is known as a fine-splitting clause, under which any fine obtained following a private prosecution must be split equally between the private prosecutor and the Minister of the Environment or the provincial government, where the provincial government paid the expenses incurred in the prosecution.

Currently, all proceeds of a fine obtained under CEPA are paid to the Receiver General. Bill C-16, which was recently before you and has now received Royal Assent, amends CEPA such that all fines collected under CEPA are credited to the Environmental Damages Fund.

It is important to note that CEPA provides authority for the Governor-in-Council to make regulations prescribing a method for distributing proceeds of a fine to compensate a private prosecutor. However, such regulations have not been promulgated. Bill S-212 would amend CEPA such that 50 per cent of a fine obtained as a result of prosecution instituted by a private prosecutor is paid to the prosecutor and the other half to the minister, irrespective of what costs may have been incurred.

Bill S-212 would also authorize the court to order the offender to compensate a private prosecutor for the costs of undertaking the prosecution. This would expand the authority of the provincial courts with respect to awarding costs to a prosecutor. Provincial courts currently have only limited authority to award costs to either party. The provision would not change the existing inherent jurisdiction of superior courts to award partial or full costs to either party.

This bill would also authorize private prosecutors to request that a court vary a court order, suspended sentence or conditional discharge resulting from a private prosecution. CEPA currently provides authority for court to vary one of these orders only on application of the Attorney General or the offender.

Finally, Bill S-212 would amend the limitation period or the amount of time within which a prosecutor may initiate a summary conviction proceeding, such that in the case of a private prosecution it begins on the day on which the private prosecutor becomes aware of the subject matter of the proceedings.

In the current provision, the limitation period begins to run on the date a minister becomes aware of the subject matter of the proceedings. Bill C-16 has amended this provision to specify that the limitation period for bringing a summary conviction proceeding is five years, starting on the day of the offence.

I would like to take a moment to underline the areas where we believe that Bill S-212 may not take into account the amendments made by or the policy expressed in Bill C-16, which is also known as the Environmental Enforcement Act and which, as I mentioned earlier, was before you recently and received Royal Assent on June 18 of this year.

Clause 3 of Bill S-212 proposes to amend subsection 275(1) of CEPA, 1999. However, when Bill C-16 comes into force, subsection 275(1) will no longer exist. Parliament has already determined that subsection 275(1) should be repealed and replaced.

The current version of subsection 275(1) provides that proceedings by way of a summary conviction in respect of an offence under CEPA may be instituted at any time within, but not later than, two years after the time when the Minister of the Environment became aware of the subject matter of the proceedings. The amendment proposed by Bill S-212 to this subsection would make it such that an action on summary conviction may be instituted no later than two years after the time when the minister or, in the case of a private prosecution, the private prosecutor, became aware of the offence.

The amendment to section 275 introduced by Bill C-16 makes it unnecessary to introduce the amendment proposed by Bill S-212. Bill C-16 amends section 275 to provide for a new way of determining the start of a limitation period. It provides that no proceedings by way of summary conviction in respect of an offence under this act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

This amendment to section 275 by Bill C-16 stems from the complications associated with proof of when a minister of the environment becomes aware of the offence. Also, extending the limitation period to five years and providing for a waiver of the limitation period upon agreement between the prosecutor and the defence counsel ensures that offences that go undetected for more than two years may still be prosecuted on summary conviction.

Should clause 3 of Bill S-212 be passed, it would revert section 275 back to a provision that has been identified as problematic.

Clause 4 of the bill, which introduces the fine-splitting provision in CEPA, also does not take into account amendments made to CEPA by Bill C-16 and conflicts with the policy that that bill expresses.

Clause 4 amends section 278 of CEPA to provide that, in a case where a private prosecution is instituted in respect of an offence under CEPA, half of the proceeds resulting from the payment of a resulting fine shall be distributed to the private prosecutor.

The existing section 278 of CEPA provides that the Governor-in-Council may make regulations prescribing the manner in which the proceeds of a fine shall be distributed in order to reimburse any person, government or body that has commenced proceedings in respect of the offence for costs incurred in respect of the prosecution. The purpose of fines under CEPA is to deter the offender and others from committing offences, to denounce offences that have been committed, and to restore damage caused by offences. This is why Bill C-16 introduced to CEPA a rigorous fines scheme and a requirement that fines be credited to the Environmental Damages Fund for use in restoration projects.

Bill C-16's general rule that fines be credited to the Environmental Damages Fund is subject to regulations made under section 278 of CEPA.

The Bill S-212 amendment to section 278 would mean that in all cases where a private prosecutor has initiated proceedings, exactly 50 per cent of the resulting fine must be paid to the private prosecutor. A scheme whereby 50 per cent of the fine is directed to the prosecutor could result in their profiting from a successful prosecution. This is not an objective of sentencing and may inappropriately influence court decisions about the quantum of a fine. This may be especially so in the case where a private prosecutor has instituted proceedings but not actually carried out the prosecution.

As you may know, the Attorney General always has discretion to take over a prosecution started by a private prosecutor. In such a case, it is difficult, or it would be difficult, to justify the awarding of 50 per cent of a fine to a person who may have incurred no costs in the prosecution. It is equally worth considering that 50 per cent of a fine may under-compensate a private prosecutor for costs incurred in a prosecution.

This provision also specifies that, where a private prosecution is instituted in respect of an offence, one half of the fine goes to the Minister of the Environment or, where all of the expenses incurred in the prosecution of the offence are paid by a provincial government, to that provincial government. This is inconsistent with the policy direction endorsed by Parliament when it passed Bill C-16. Bill C-16 amended CEPA so that all fines received by the receiver general are to be credited to the Environmental Damages Fund for use in restoring the environment, including repairing damage resulting from the offence. Should clause 4 pass, in the case of private prosecutions the fine would not be directed to the Environmental Damages Fund.

Paragraph 291(1)(m) of CEPA currently provides that the court may, upon conviction of an offender, direct that the amount of any fine or other monetary award be allocated, subject to the Criminal Code and any regulations made under section 278 of CEPA, in accordance with any directions of the court.

Clause 5 of Bill S-212 proposes to amend that paragraph so that it takes into account the previous amendment to section 278 that split section 278 into subsections 278(1) and 278(2). However, paragraph 291(1)(m) is repealed by Bill C-16 because it is inconsistent with the provision introduced by Bill C-16 that fines, subject only to regulations made under section 278, be credited to the Environmental Damages Fund. Should clause 5 pass, paragraph 291(1)(m) would revert to a provision that conflicts with the provision introduced in Bill C-16.

Those are my remarks, and we would be pleased to respond to any questions.

The Chair: Thank you. Those were very clear and an excellent summary of the legislation.

Neither of the other witnesses will speak at this point. I think it is appropriate, perhaps, Senator Banks, that you start off.

Senator Banks: If any other members have questions, I would be happy to wait.

The Chair: We do have a list here. What is your preference?

Senator Banks: I will start, then, if I may. Thank you very much.

The Chair: I have not had much experience with this type of a situation, because it is complicated, as you know, by the fact that you will be bringing further amendments. However, we do understand and have been advised that the department is not in favour of this bill. I would like that to be clearly understood, and the reasons why, and to give Senator Banks a chance to at least get the debate before us so the members will know how to vote in an educated way when the time comes.

I hope you do not mind my having said that, but it is nothing I have not said to you privately.

Senator Banks: Correct, and is not known to us all.

The Chair: Correct.

Senator Banks: Thank you. I appreciate the indulgence of members in allowing the procedure that the chair has now correctly described.

Witnesses, I hope that when I have prepared the amendments to which I will refer in a moment, in the subject areas to which I will refer in a moment, we might ask you to come back again or to respond in whatever way. I hope that could be within the next couple of weeks.

The problems that you have so clearly addressed with this bill arise in a large degree from the fact that this bill preceded Bill C-16. Bill C-16 in effect intervened and did things to CEPA, to which we have all agreed, that now conflict with the provisions of Bill S-212. Therefore I will go through it quickly in order. My questions to you will be seeking instruction to assist me in the making of amendments that I will be proposing.

If I can direct your attention to clause 1, I will ask a question of information. Am I correct that no prosecution, private or public, can end up in a court unless with the concurrence of the respective Attorney General?

Ms. Mentzelopoulos: Yes, that is correct.

Senator Banks: Therefore, a frivolous undertaking of a prosecution by someone, by an overly avid tree hugger, for example, or whomever, proceeding into court is unlikely if it does not have substance and if an attorney general has not looked at it and said that there is something here and that it should proceed, on either a public or a private basis. Is that correct?

Ms. Mentzelopoulos: That is correct, in terms of it proceeding for the full extent.

Senator Banks: A completely frivolous prosecution, or one that has been instituted that on the face of it seems to be seeking profit, would be unlikely to survive the scrutiny of an attorney general and proceed into court. Is that a reasonable assumption?

Ms. Mentzelopoulos: I am not sure whether there could be a determination at any stage that it is for the intent of seeking profit, but in terms of other considerations that may be more easily identified as frivolous, yes.

Senator Banks: One of the things an attorney general would take into account would be the likelihood of obtaining a conviction under such a charge. Is that correct?

Ms. Mentzelopoulos: That is the consideration.

Senator Banks: It is among the criteria they use.

In the present bill, as CEPA is now, if I were to bring an action under it or propose to bring an action under it, I must first satisfy someone that significant harm has been caused to the environment. Who makes that adjudication?

Nancy Klenavic, Policy Analyst, Legislative Advice Section, Environment Canada: I can answer that, senator. In the context of an environmental protection action, the court would determine whether or not you have proved, on a balance of probabilities, that significant harm has resulted to the environment.

Senator Banks: Would the procedure be that I first have to go to court and prove that significant harm has happened?

Ms. Klenavic: The court would allow an environmental protection action to proceed only if the offence had caused significant harm to the environment.

Senator Banks: What I do not understand is — and I am ignorant of these things — if a police officer writes an information and charges me with break and enter, he does not have to first go someplace and prove that I broke and entered; he makes the charge and then the court will determine my guilt or innocence. In this case, it says that I cannot proceed with the laying of an information and obtain a charge unless I have first shown that the party that I am charging has caused significant harm to the environment. Do I have to prove that to a judge?

Ms. Klenavic: I will just clarify. The requirement to prove significant harm occurs only in the context of an environmental protection action, which is a different action than a prosecution. If you wanted to lay an information as a private prosecutor, you would lay the information that would allege that someone had committed an offence against CEPA, and there is no requirement that you prove significant harm in that case.

Senator Banks: Would you say that again, please?

Ms. Klenavic: The requirement to prove significant harm occurs only in the context of an environmental protection action, which is a unique type of action that is provided for under CEPA. It is not a prosecution. It is a civil action that would not result in a conviction; it would only result in a type of order. Perhaps the court would order the parties to negotiate a remediation agreement or that sort of thing. In that context, that is where the requirement to prove significant harm comes in, because a person may only launch this particular type of action if the alleged contravention of CEPA has caused harm to the environment. It is a little bit different from a police officer laying an information.

Senator Banks: I understand that is not a good analogy, but if a person — and I am presuming that we mean "person" in the sense of an individual or a group of people in an organization — were to undertake to begin an action under CEPA for a contravention of the provisions of CEPA, to whom do they need to first prove or show that that action has caused significant harm? Would that be a judge?

Ms. Klenavic: Yes, that is correct.

Senator Banks: Thank you.

I understand clause 1(2) and I understand, I think, clause 2. With respect to clause 3, on page 1 of Bill S-212, because of what you have described as having happened, we have agreed on the committee that at clause-by-clause consideration we will negative that provision. I am making a presumption, I guess.

I will vote no on clause 3 in clause-by-clause consideration because, as you have said, recent legislation, which we have approved, changes the landscape in that respect, that is, the two years upon discovery and the five years from commission both have advantages and disadvantages. I will be voting no on clause 3 because I think it is now unnecessary.

I have a couple of quick questions on clause 4 on page 2. I will be proposing an amendment to this provision in light of changes that have been made by Bill C-16, including taking into account the Environmental Damages Fund. Am I correct that the money going to the Environmental Damages Fund is subject to a regulation? Is it the case that a regulation could be made in this case, presumably by the minister, which would provide that the proceeds of a fine would not go to the Environmental Damages Fund?

Ms. Mentzelopoulos: Bill C-16 provides for the proceeds of fines to go directly to the Environmental Damages Fund, but it respects the provision, which has been contained in CEPA for some time, that a regulation may be prepared that would direct some proceeds of fines to costs.

Senator Banks: So it is not necessarily the case that, without exception, proceeds of a fine would go into the Environmental Damages Fund. There are circumstances in which parts of the fine might go elsewhere?

Ms. Mentzelopoulos: Only if a regulation were to be made that stipulated that. In the current situation, when Bill C- 16 comes into force, all proceeds of fines will be directed to the Environmental Damages Fund.

Senator Banks: And not be subject to a ministerial regulation?

Ms. Mentzelopoulos: No, those regulations do not exist. There is no regulation that would do other than put the money into the Environmental Damages Fund.

Senator Banks: There would not be such a regulation under the new provisions that have been brought into effect by Bill C-16? The minister would not be able to make such a regulation?

Ms. Mentzelopoulos: The authority in CEPA to make such a regulation continues. Bill C-16 does not change that authority, but no regulation of that nature exists.

Senator Banks: Under CEPA as it is now, the Governor-in-Council may make regulations prescribing the ways in which those monies may be directed. Has that ever happened?

Ms. Mentzelopoulos: No. Under CEPA, that regulation has not been promulgated.

Senator Banks: In arguments here on fine splitting, I have referred to the Fisheries Act. I understand there are differences, particularly with respect to amendments made as a result of Bill C-16, in the amount of those fines. That underlies the amendment I will move to make it less conflicting.

Is there a reasonable analogy to be drawn between the fine splitting in the Fisheries Act and a couple of other pieces of environmental legislation, on the one hand, and CEPA, on the other hand?

Ms. Mentzelopoulos: Respectfully, I am not sure I understand the question.

Senator Banks: Under the Fisheries Act, if a prosecution is brought by a person in law, the fines are split. Is there a reasonable comparison between that fact and CEPA?

I am asking because fine splitting has been in place in the Fisheries Act for nearly 30 years, and I am wondering whether you are aware if there has ever been, in the case of the Fisheries Act, the kind of untoward undertaking that you talked about in terms of prosecutions having been entered into for the purposes of profit, or whether the fines have been inappropriately low because the court did not wish to see a prosecutor or anyone profit. Has that ever happened, to your knowledge?

Ms. Mentzelopoulos: Not to my knowledge, but we have not done the analysis that would be required to answer that in a complete way.

Senator Banks: Can you find out whether there have been instances under the Fisheries Act of the kinds of effects that you referred to when you were speaking to the downside of clause 4 in respect of your view of CEPA?

Ms. Mentzelopoulos: There may be aspects of your question that we can canvass. There may be some aspects, particularly with respect to the intent of individuals involved, that would be more difficult to determine.

Senator Banks: I ask that for assistance in drafting, because this clearly needs to be amended.

I will make a statement and ask you to tell me whether I am right or wrong. The proposal in clause 5 of Bill S-212 does not detract from the discretion that exists in 291(1). If we add (k.1), its language is consistent with the preceding paragraphs and does not impede with the discretion of 291 of CEPA.

Ms. Klenavic: That is correct. The language in (k.1) fits into the discretionary powers of the court upon conviction.

Senator Banks: This does not constrain the court in any way?

Ms. Klenavic: No. It only authorizes the court to order the defendant to pay the private prosecutor's costs.

Senator Banks: Thank you.

I will be proposing an amendment to clause 5(2) to take into account things that Bill C-16 has done as you have described. There are very good reasons to pass framework legislation that contains the idea, with the regulations to come later and to come into effect at some time later.

Does the Department of Justice have an idea of when Bill C-16 will be brought into force?

Ms. Mentzelopoulos: We are here from Environment Canada and are responsible for the implementation of Bill C- 16. Ms. Caron can talk to you about the two-stage implementation plan we have designed and are working on. I am directly accountable, but Ms. Caron is doing most of the work for the coming into force of Bill C-16.

Senator Banks: That would be useful information.

Renée Caron, Executive Director, Legislative Governance, Environment Canada: In terms of timing, we foresee that some of the provisions of Bill C-16 would come into force in the spring of 2010, and the rest of the provisions would come into force potentially in the winter or spring of 2011. We expect that the provisions affected by this bill would come into force primarily in the spring of 2010.

Senator Banks: That is good. Thank you.

My last question seeking instructions is in respect of clause 6. You have not raised a point about clause 6, but I did, because when I was looking at the bill in its entirety I realized that my intent with respect to clause 6 was not clear.

The purpose of the amendment that I will propose to clause 6 will be to ensure that it is clear that I am trying to include the private prosecutor, not to exclude the Attorney General. The language in this draft of the bill seems, in the case of a private prosecution, to exclude the Attorney General, and that is not my intent. I need to reword that to make it clear that the Attorney General ought always to be a part of any application that is made under that section. That is just by way of information, so that you will know that I am paying attention.

The Chair: Before I go to the list of questioners, there was quite a bit of interchange on the subject of establishing that there has been significant damage to the environment as a precondition of a prosecution's being successful. I understood from Ms. Klenavic's comments that it is a two-stage process.

Am I correct that you do not have to absolutely prove that there was significant damage but just establish a prima facie case? In other words, you do not need to have all the evidence of it, just lay out a scenario that establishes a prima facie case for that significant damage. Is that correct? That might clear up the problem. There is no full-fledged trial on the issue.

Ms. Klenavic: No. Perhaps I could step back and clarify.

Under CEPA, two distinct things can happen. One is an environmental protection action, which is a civil action. The second thing that can happen is a prosecution, which can be taken by the Attorney General or a private actor.

The Chair: What about that first one, that civil action. That is private only?

Ms. Klenavic: That is right. The government cannot take an environmental protection action. It is available only to individuals who are resident in Canada and who have already asked the minister for an investigation and have not received a response from the minister or have received an unreasonable response.

The Chair: That is more of a damage action, as opposed to a criminal prosecution where there would be condemnation. Am I right? It is sort of like suing someone for damages.

Ms. Klenavic: You are partially right. It is like suing someone. It is a civil action. A private actor cannot recover damages through this action. The actor can only have the court give declaratory relief. For example, the court could order the defendant to stop doing something that is in contravention of the act or could order the defendant to negotiate a plan with the plaintiff to remediate an area, that sort of thing. The actual individual involved cannot recoup damages for this type of action. It is in this context that the requirement to prove significant harm exists. That requirement must be proved on a balance of probabilities. It is not beyond a reasonable doubt, but, yes, there must be evidence of significant harm to the environment.

In the case of a prosecution, that does not come into play. In a prosecution, just as if the Attorney General took on the prosecution, you are proving the offence — that is, whatever the contravention was, which, under CEPA, many times does not involve proving harm to the environment. Does that clarify?

The Chair: Does that help you, Senator Banks?

Senator Banks: Very much.

Senator Lang: Thank you very much. I appreciate your coming forward and providing this information to us. It is very necessary, considering the bill that we have before us.

It is important to reiterate the statement made by the witnesses that the intentions with respect to the bill we passed here last spring are to implement it over the course of this coming year. At the outset of this committee, there was some question about how long this will take, and it is important that that be reinforced.

I would like to start by comparing this particular piece of legislation to the current fisheries legislation. It is important, because the Fisheries Act is referred to time in and time out in respect of this concept of fine splitting and what is presently in the legislation with the Fisheries Act versus Bill C-16.

I want to begin by clarifying something, and perhaps one of the witnesses could respond to this. Could you tell us whether the Fisheries Act also includes, as part of its ability to rectify environmental damage, an environmental damages fund? If we are going to compare apples with apples, we should know what is in the one act versus this one.

Ms. Klenavic: I might clarify that. Judges can send fines to the Environmental Damages Fund under a number of statutes, and the Fisheries Act is one. Although there is no requirement that a fine under the Fisheries Act go to the Environmental Damages Fund, the judge has the discretion to send it there.

Senator Lang: Presently, the Fisheries Act does not include policy to direct fines to the Environmental Damages Fund, which is a significant difference between that piece of legislation and this one, from the point of view of policy. Is that correct?

Ms. Klenavic: That is correct. There is no mandatory requirement under the Fisheries Act.

Senator Lang: The next question I have, I will compare to the Fisheries Act, because it is important that we realize this. With CEPA and the amendments we put forward last spring, we went from about $10,000 or $20,000 as a maximum fine to a prorated system of fines up to a maximum of $4 million that could be doubled to $8 million on a second offence. In other words, the policy statement that occurred in Bill C-16 was designed in such a manner that — and I think one of the witnesses referred to it — one of the deterrents is the size of the fine, if you have committed an offence under the CEPA, the way it is written now. Substantial amounts can be levied. A second offence could go as high as $8 million. I want to clarify that for the record. Is that correct?

Ms. Mentzelopoulos: The key goals are deterrence, denunciation and remediation. It is a fine scheme of that magnitude. Ms. Klenavic can clarify, but the new fine scheme is meant to avoid a scenario where someone sees a fine as a cost of doing business. The remediation comes from the fact that fines be directed to the Environmental Damages Fund.

Ms. Klenavic: Currently under CEPA, on summary conviction the maximum fine that can be obtained is $300,000. In general, courts have imposed fines that are much lower than that. I believe the highest fine imposed under CEPA was $100,000. Mostly, they are quite a bit lower than that.

The Bill C-16 amendments introduced a different type of regime under which there are minimum fines for the most serious offences, starting at $5,000 for an individual, but those minimum fines increase for small and large corporations. With a large corporation, for example, the minimum fine for a serious offence would be $100,000, up to a maximum of $4 million. That amount would double on a subsequent or second offence.

Senator Lang: Once again, the Fisheries Act is being referred to. If you could clarify, for the record, under the Fisheries Act, my understanding is that the maximum is $1 million. However, experience over time has indicated that you are dealing with fines in the neighbourhood of $100,000 or $200,000, which are significant fines.

The Chair: The maximum that was ever imposed was $100,000.

Senator Lang: This is under the Fisheries Act. I want to refer back to it.

Ms. Klenavic: Under the Fisheries Act, it is correct that the maximum is $1 million, and I believe that is on indictment. Generally under the Fisheries Act, we see fines in the tens of thousands or hundreds of thousands of dollars. In one case only, a $1-million fine was imposed under the Fisheries Act.

Senator Lang: I am pursuing this because of the concept of fine splitting vis-à-vis the amount of money that could be levied, depending on the size of the infraction. I think that is important, because if you are going to refer to one aspect of another bill in conjunction with this one, you have to compare all aspects and the ramifications of how it would work. That is the point I am making here today; I think that must be a consideration in anything we do here in respect of examining the ability of fine splitting. Personally, I have a problem with the premise behind it.

To clarify Bill S-212 in conjunction with CEPA, I want to refer back to the ability of the fine splitting. You could get 50 per cent of a fine, and also get awarded costs at the same time. In other words, that would take that much more money away from the money that could go to the Environmental Damages Fund as per the policy that we all agreed to last spring in the legislation. Is that correct?

Ms. Mentzelopoulos: Bill S-212 provides a provision to split the fine and to award costs in addition to the proceeds of the fine.

The Chair: On that point, to help me, during Senator Banks' questioning, the phrase "other monetary award" was used. That flashed in my head as something different than either a fine or costs. Is there some other mechanism for damages? Is that what it is? I do not know where you got that, Senator Banks, but you were reading from one of the provisions in the bill.

Ms. Klenavic: I believe the provision we are talking about in Bill S-212 authorizes the court, after a conviction, to order the offender to pay an amount of money to a private prosecutor in compensation for their costs. That is not an amount of money coming out of the fine; it is an additional award of money.

The Chair: It is costs. It is not compensatory damages.

Ms. Klenavic: That is right. It is based on their costs. It is clear that it is for their costs and expenses.

Senator Banks: On that point, I would reiterate that a private action, not criminal but civil, does not contemplate or allow for the private prosecutor, who has initiated that action, to gain any damage compensation as a result of that action. Am I correct?

Ms. Klenavic: Yes. That is correct.

Senator Lang: Mr. Chair, I would like to go to another area. I have dealt with the question of fine splitting and the policy and the examination of that, in comparison to the Fisheries Act, to see whether it is appropriate to have in this legislation. At least at this time, in view of the fact that this bill is new, the Environmental Damages Fund is new and the fine structure is so significantly changed as a deterrent from what it was before, all those elements have to be taken into account.

Referring to Bill S-212, my concern is a fair flaying field, if I could use that expression. Right now, the way I understand it, a private prosecutor can be awarded costs, but what happens if the defendant is found to have not done anything wrong? The alleged offence has not occurred, but the defendant has incurred costs. Does this particular piece of legislation allow for costs to be given to the defendant? You might want to comment on the question of a fair playing field.

Ms. Mentzelopoulos: I will give a brief answer, which is no, it does not. If there is any elaboration, I will leave it to my colleagues.

Ms. Klenavic: Bill S-212 does not add any authority for the court to order the prosecutor to pay the defendant's costs. The superior courts do have inherent jurisdiction to award costs to either party, although it is rarely used in the case of criminal convictions. In the case of a provincial court, the amendment in Bill S-212 would allow the court to order one-way costs towards the prosecutor, but not the other way should the prosecution not be successful.

Senator Lang: That is important, Mr. Chair, because what is good for the goose is good for the gander, depending on the outcome of a case. That is an area that would have to be looked as well.

Senator Neufeld: This is a perhaps more of a question to Senator Banks. Maybe my notes are wrong from our meeting the other day, but I have noted that you are going to delete clause 5 of Bill S-212. Did I write that wrong?

Senator Banks: Yes.

Senator Neufeld: You are not going to delete it?

Senator Banks: My intent in respect of deletion is that I will vote "no" to clause 3 when we are in clause-by-clause examination, which, if my colleagues all agreed with me, would have the effect of deleting it, but I propose to bring amendments to clause 5 of Bill S-212.

The Chair: Our notes say the same thing. The other day, you indicated that would be deleted.

Senator Banks: Let me make myself more clear. I said that I would be proposing an amendment to Bill S-212 to take this matter into account, but it will not be an amendment of 291(1)(m) of CEPA because 291(1)(m) of CEPA no longer exists and we cannot amend a section of a bill that does not exist. I will be bringing forward an amendment to take into account the intent that is expressed in Bill S-212, in clause 5, in another way, other than amending 291(1)(m).

Senator Neufeld: That helps me a little. Thank you.

When we say a "private prosecution," is that an individual? Is that a group of individuals? Is that an organization? What is included in a private prosecution?

Ms. Mentzelopoulos: It could be any of those who would initiate a private prosecution, a group.

Ms. Klenavic: I will check whether it can be a group. The authority for a private person to lay an Information comes from the Criminal Code. I do think I have the provision here. I think it is any legal person, so an individual or a corporation, for example.

Senator Neufeld: I asked that because the other day we had the person here from Ecojustice, which was formerly the Sierra Legal Defence Fund. Would they qualify as a private prosecution? We understand, from the lady's opening remarks, that this is a group who are staffed by scientists and all kinds of lawyers. They are a sophisticated group. I think I am right in saying that they totally approve of fine splitting. When Senator Lang talked earlier about up to $4 million, it seems a little self-fulfilling that someone would come here from that kind of organization and say, "Yes, we want fine splitting, because we can see a $4-million fine out there, and $2 million would go to our group to continue the thrust of what we like to do." I need to know: Would they be considered as a private individual person?

Ms. Caron: I will answer by saying I do not think we can answer that question specifically with respect to the nature of Ecojustice as an entity. We are not familiar at this table at this moment with the legal status of Ecojustice. That being said, I do think Ecojustice, if it did not have its own status to bring a private prosecution, would be able to do so through an agency.

Senator Neufeld: Can you get back to the chair with a written response to that question, through the clerk, so everyone gets to read that response.

If it were that it is just a private individual, and by that I mean Fred and Martha, the taxpayers, the people of Canada, an individual could bring forward a private prosecution and could have the backing of the Sierra Legal Defence Fund or Ecojustice Canada, and they could be doing all the work for that individual, and the individual could be just one of those people that belonged to that organization. Would that be correct?

Ms. Caron: Yes. That is essentially what I was referring to when I said it could be under an agency agreement.

Senator Neufeld: Thank you. I believe that answers my question.

The Chair: Senator Lang is next. I believe he wishes to clarify something.

Senator Lang: I just want to pursue more on the fine splitting, and I also have a question for the witnesses.

Let us say that Bill S-212 came into effect and the premise of fine splitting for the purpose of CEPA was accepted, and an offence was committed and a corporation was fined a substantial amount of money — $2 million. Of that, $1 million goes to the private prosecutor, and $1 million is outstanding still because 50 per cent of the fine is still there. Is my understanding correct that, in the way Bill S-212 has been presented, that $1 million would go to the General Revenue Fund as opposed to the Environmental Damages Fund?

Ms. Mentzelopoulos: That is correct. The provisions of Bill S-212 direct 50 per cent of the fine to the Minister of the Environment, whereupon it would go to the receiver general.

Senator Lang: To conclude then, that takes away further from the concept of the Environmental Damages Fund, which has been set up under policy with the idea of remediation of the environmental damage that has been committed. That is a statement. You do not have to comment on that. It would take away and diminish the general premise of the bill in CEPA.

The Chair: For a clarification, Ms. Mentzelopoulos, you were saying that the goal was remediation, and there were three terms; one was "denunciation," and I did not know what that meant.

Ms. Mentzelopoulos: Ms. Klenavic or Ms. Caron might wish to clarify that.

Ms. Caron: It is essentially a public condemnation of the offence. It is the public reprobation for that kind of offence occurring.

Senator Mitchell: I would like to pick on a couple of points here that have been raised for further clarification. I think it is clear, but I want to emphasize and I would like you to clarify this.

Private prosecutions are not unique to this bill by any means. We have certainly discussed private prosecutions under fisheries. There are provisions for private prosecution under criminal law. There are provisions for private prosecutions under certain Ontario laws, if I am not mistaken.

Are you aware of any other private prosecution provisions in Canadian provincial or federal laws, or even international precedent? We are not reinventing the wheel here, are we?

Ms. Klenavic: No, not at all. The authority to undertake a private prosecution comes from the Criminal Code but applies to all federal acts, so as far as I know anyone can lay an information if he or she suspects that someone has contravened any statute.

Senator Mitchell: It would not be odd to include this in this act. It would actually be odd to exclude it.

Ms. Klenavic: I do not think Bill S-212 includes the authority to undertake a private prosecution. The provisions in Bill S-212 seem to facilitate or deal with the fine on a private prosecution. They do not actually empower someone to undertake it.

The Chair: It is already there in the act that Senator Banks is trying to amend.

Senator Mitchell: To some extent, the support for this bill, as you can tell in here, hangs on this sense about private prosecutions, but there are many precedents. It is in many places.

My second question addresses Senator Lang's concern, which is that somehow the money that would otherwise go to the environmental fund would not go there because of these private prosecutions. Am I not right to say there would not be any money at all but for the private prosecution, because the Crown would not have done this anyway? There would not be a fine anyway. There would not be money that could go to a defence fund anyway. It is all net new money. Some will go to the environmental fund and some would go to the private prosecutor, but the fact is that if it were being prosecuted by the Attorney General, then a private prosecutor would not do it. It is found money whatever part of it goes wherever it goes.

Ms. Mentzelopoulos: In the context of private prosecutions, yes.

Ms. Klenavic: I would clarify that the provision in Bill S-212 mandates that 50 per cent of the fine go to a private prosecutor if they have instituted the proceedings.

From what I understand, that can be just laying an information, and I do not think that that necessarily means that the Attorney General would not have laid an information. In addition to that, often private prosecutions are taken over by the Attorney General, and the proceedings are carried out by the Attorney General.

Senator Mitchell: We could clarify that. Surely, it could not be the case that an Attorney General could lay an information, and then I could come along three minutes later and lay one and then lay claim to half the fine? Surely that is not possible.

It might be the other way around. I lay it. Finally we get the Attorney General's attention, which still supports my point. It would not have happened if I had not laid that private prosecution. The Attorney General was not interested; the Attorney General was not doing it, and in fact the laying of the private prosecution was what actually got the Attorney General's attention. It is not money that would have been lost to the fund, because the fund was not going to get it anyway.

Ms. Caron: If I could respond to that, we need to be careful, because the Public Prosecution Service of Canada will lay an information when it has built up its case and is ready to proceed. In the question of timing, of who gets there first, it can be difficult to assume. I would not assume that the Public Prosecution Service was not proceeding or working towards laying an information in any event. The fact that a private prosecutor may have done so first will not change the Public Prosecution Service's continued work and then eventual taking over of a case.

Senator Mitchell: How often has it happened?

Ms. Caron: I am speaking in theoretical terms. We would have to speak with the Public Prosecution Service to answer that question.

Senator Mitchell: There have hardly ever been private prosecutions, one, and how often has this subset of them occurred? If you could get information on that, it would be great.

My next question relates to concerns of an organization like Ecojustice, which is highly credible and has lawyers. Anyone can hire a lawyer that he or she wants in our society. If he hires that particular group of lawyers to do a private prosecution, so what? How often has Ecojustice or the Sierra Legal Defence Fund taken a private prosecution? Are you aware of that?

Ms. Klenavic: I cannot answer that accurately. You would have to get that information from them. I do know they have been involved in several.

Senator Mitchell: To the point that people would do this, could make money on the fine share and get their costs covered — and I am not a lawyer — is it not true that people, when they get costs, generally do not get all their costs covered? We talk about costs in a legal sense, but that is not all the money they spent in a prosecution or in defending themselves by any means generally in the courts; is it?

Ms. Caron: Generally in the court system, going back, tapping into my deep memory, it would be costs as assessed. The costs that are actually incurred may be higher than what the court would ultimately consider to be reasonable costs. Yes, I believe it is common that litigants will spend more money than they are able necessarily to recoup at the end on their costs.

Senator Mitchell: This is not a lottery in which they are buying a ticket, hoping to win, making a business of it and living happily ever after in a sumptuous way. They are doing this for the environment.

Ms. Caron: It is not obvious to me that the intent of clause 4 is driven towards covering costs. It is not clear that that is actually the purpose underlying clause 4, because clause 4 is written in such a way that it is a non-discretionary, automatic splitting of the fine. Since there is no discretion, it is not apparent how that would be guided, and in fact it is just an automatic provision. Therefore it is difficult to speculate on what the purposes of that clause are.

Senator Mitchell: Thank you.

The Chair: Senator Banks, I was going to make a comment, again demonstrating my lack of experience with this type of private legislation. In effect, you are trying to improve CEPA as amended by Bill C-16 largely with a view to facilitating achieving the goal of CEPA, to get the public more involved and aware and to make it easier to take private steps against polluters of the environment. I believe these witnesses are also in business to do the exact same thing. Therefore, it occurs to me that as you move forward to streamline this bill, these witnesses might be available to you to help you achieve your goal and, at the same time, remove elements that are not perhaps acceptable to the department. I do not know. Maybe I am naive in this regard, but it seemed to me we are close to a common ground. That is just a statement.

Am I off base here, witnesses from the department?

Ms. Mentzelopoulos: I am not within my authority today to make that commitment.

The Chair: That is fine. However, you are available, obviously, if any one of us wants to have a chat with you about what arises from the evidence? Are you available to someone like Senator Banks?

Ms. Mentzelopoulos: Yes.

Senator Lang: With all due deference, I think you are off base.

The Chair: That is fine.

Senator Lang: I do not say this unkindly. I think there is a significant policy decision here, and that is the question of fine splitting and whether or not we agree with that premise. I think that has to be established prior to asking the department or others to draft legislation in that manner.

The Chair: I was actually not referring to the fine splitting part.

Senator Lang: That, to me, is the most significant aspect of this bill, in conjunction with what we know about CEPA and the size of the fines, the changes that have been put in there and the policy direction of the Environmental Damages Fund. I would submit that that issue has to be taken care of first.

The Chair: Fine.

Senator Banks: I have said that I will do that, and I hope that it will be in a way that will please us all, in light of the fact that clause 4 of Bill S-212 clearly conflicts with legislation that has intervened since this was introduced.

I have one final question of our witnesses. I thank you for saying that you would be prepared to talk with me when I prepare the amendments to see whether they are helpful to you.

We have talked a lot today about policy expressions in Bill C-16, policy expressions in other legislation, the philosophical grounds behind them and what the intent of the law is. Would you agree with me that in reading CEPA, 1999, as amended, and going back to CEPA, 1999, before it was amended, and going back in fact to CEPA, 1988, that the philosophical concept of involvement of the public in bringing private prosecutions is clearly expressed in those bills, and in fact is a fundamental stated intent of the content of those successive bills, and will remain so under the amendments that have been made to CEPA by Bill C-16? Is that a reasonable statement?

Ms. Mentzelopoulos: Yes, senator.

Senator Brown: I would like to point out that private actions can really backfire on people who get involved with them. I was on a Western Irrigation District Board of Governors and someone decided to sue us for seepage from a canal. It was a young fellow, and his father's land was involved. To make a long story short, he lost the case, lost the farmland, and we had to pay half of his costs as a board, just out of what the judge said was charity. Private actions of any kind scare me. I would like to see a warning label on a bill that would allow a private action. I think a private action is a dangerous thing.

The Chair: Do you just want to make that statement or do you have a specific question?

Senator Brown: I would like to make that statement. I would like to see how you could put in a bill something that would protect people from thinking they could make a lot of money from a private action and ending up doing damage to themselves.

The Chair: That might be something for this committee to consider at a later time. We have to keep within the bounds of what is before us.

Before I wrap up, I am a great believer of the old adage that a picture is worth a thousand words, whether it is a graphic picture or a verbal picture. It would be helpful — Senator Banks and/or witnesses — if we could have an example of each of these two types of legal proceedings. In other words, I am aware of a case that happened recently in this area, across the river in Quebec, where there was a dumping area that had been set aside. The people who had the contract or the licence to dump things in there were going beyond the scope of the content of the materials that were being dumped. As a result, a chemical reaction was caused, as the thing got deeper, and noxious fumes and the like were emitted, so much so that they were deleterious to the health of the people who lived in the adjacent property.

Despite their best efforts — and I am suggesting this would be a case why we want to have the ability for private people to act — no public authority did anything. There were babies or young people living in these homes. These fumes became so bad that they had to evacuate their homes and move, in one case temporarily and in another case permanently, to a new house, because the public did nothing.

The private people started to do it themselves. They tried to get a group of neighbours together. It cost a lot of money to beat down against the people who were causing the damage. They needed expert witnesses and chemists to the point where it became hopeless.

If you could use that as a fact picture, how would this legislation work? Do you follow what I am saying? I believe that legislation and the amendments to CEPA, under Bill C-16, and as supplemented perhaps by Bill S-212, would enable those people to get relief; there would be denunciation; and no one would go bankrupt in the process.

Ms. Mentzelopoulos: We can certainly take that back and determine whether, within the bounds of the analysis we can do on Bill S-212, we would be permitted to do something like that.

The Chair: It is fairly simple. The witness for Ecojustice the other day quoted some cases for us. We do not know what the fact patterns were, other than that one involved some pollution in Hamilton Harbour. My question at the time was this: If I had a house on Lake Ontario, other than if I am a public-spirited person, why would I, at my expense, try to seek redress for the state for that pollution?

The fact pattern I have elucidated would seem to be a more interesting one for private citizens to go after. Correct me, senator, but I think it is that sort of thing you are trying to facilitate, redress for those inhabitants, without having to prove on the balance of probabilities that these were noxious fumes, that there was a causal link between the dumping and the outcome. Have I got it right?

Senator Banks: I think so, but I invite the witnesses to comment on what you have just said. We must bear in mind when we are considering this that there is a great distinction between you or me undertaking to sue someone who has caused us damage in a civil court. We do not need CEPA to do that.

The Chair: No. This witness said it is not a compensatory thing. It is to get an injunctive relief to make them stop doing it and to clean it up.

Senator Banks: The purpose of a private prosecution to bring about an environmental action is not to seek compensation for having been wronged; it is to right a wrong. Is the chair right in that respect?

Ms. Klenavic: Yes, that is correct. Under either an environmental protection action or a private prosecution, the person is not collecting damages. It is not the same as a civil suit for damages.

Part 2 of CEPA is designed to help people in that situation. There is authority for people to ask the minister to investigate. If the minister does not respond or responds unreasonably, they can continue with an environmental protection action under Part 2 of CEPA.

The Chair: There is one thing that has not been put on the table so far in this, which I consider to be a healthy debate, and that is jurisdiction. The persons involved in the picture that I described first went to city hall. They were told they had to go to the provincial minister of the environment, and then they were told it is a federal matter.

I think what we are trying to do here is to make it easier for our citizens that we are serving, or trying to serve, to get relief in those situations.

Senator Mitchell: Just to follow up on your point, chair, about empowering citizens, this kind of legislation is very much in the tradition of empowering Canadians so that they can have some control over issues and wrongs. It is not all just left with the government. We are taking power back from the government and handing it to individual Canadians and others, as defined legally. I cannot see how that can be a bad thing.

In fact, in a broader context, it is in the tradition of democratic reform. There is huge momentum in our society today about democratic reform. In many respects, this initiative sustains a broader democratic strength in our political system and in our legal system.

The Chair: Sort of like electing senators, I suppose.

Senator Mitchell: We have to consider that, absolutely.

The Chair: Scratch that.

Senator Mitchell: We need democratic reform. This would be the place to start. Let us see if we can get this one done first.

Senator Banks: I think the picture you have laid out, Mr. Chair, is a very instructive and useful one. Just to reiterate, in the circumstance that you described, there are a number of things an individual could do. To seek injunctive relief or a remedial order or something like that is one thing. To participate in some degree in a fine that might be levied under that is another thing.

However, to seek actual damages, one can go to court. You do not need CEPA or anything. You can go to court and launch a civil action. We do not require anyone's approval to do that.

The Chair: That is a different thing. The picture I was referring to is here are these people suffering present damages and health-threatening events, with no way to deal with it or stop it.

Senator Banks: They are frustrated in trying to stop it.

The Chair: They did not know what jurisdiction — all of those things.

Senator Banks: Exactly right. Thank you.

Senator Lang: I want to say a couple of things for the record. I appreciate my colleague, Senator Mitchell, but we have to be careful with the spin we are putting on this bill that is before us, in conjunction with what is already on the books through Bill C-16.

First, I think for those who are viewing these proceedings, it is clear that there is the ability for private prosecution, as per the legislation that is in the process of being implemented. I think we all agree that where a major offence is taking place and the government authorities are not necessarily doing the job that we pay them to do, there is an avenue for a public body — person or otherwise — to proceed.

I think we have to make that clear. I find it difficult that when we get into a debate of this kind, in this case an environmental bill, if you question some aspects of it, all of a sudden you are opposed to the environment or you do not believe in public participation. I want to make it clear that I do believe in that, but I have a real problem with the concept of fine splitting, especially with the magnitude of the fines that we have brought forward at this time. I do not think that is a good use of fines.

The Chair: That is very clear, senator. You made the point.

I think the point that Senator Banks was trying to make — and we can have this debate at clause-by-clause consideration — was more to try to harmonize the Fisheries Act with CEPA; whereas you have pointed out, and the witnesses have agreed with you, that it is apples and oranges and it is not an appropriate place for such harmonization. I think you have made that point, and we will have to decide collectively what we want to do with it.

Senator Banks may reflect upon the wisdom of the clarification you have provided. One does not know.

Senator Lang: I have no doubt that he will.

Senator Banks: I always reflect upon your comments.

Senator Neufeld: I want to reinforce what Senator Lang just said regarding the tone that all we want to do with Bill S- 212 is include people; it is already there in CEPA. You can already do that.

It is not as though I do not want to include people. I want to be careful about where this money goes, because we are not talking about $10,000 or $50,000; we are talking about a maximum of $4 million and maybe double to $8 million.

In my life, when you start talking about millions, people perk their ears up. When you talk about $10,000, I do not know whether I want to spend the time to do it; that is the attitude.

I think there is an important thing we should distinguish here. I am not saying I am against the public's being involved in bringing something forward to the ministry if they have not done it, but the ability to do that is there. We are talking about splitting the dollars. That is what I am talking about, the fines.

My experience is that finance ministers are loath to have a fund where fines go. They would rather have it go to general revenue. That has been my experience, that they will fight that tooth and nail.

Here, the finance minister has said: "Yes, I agree there should be an environmental fund." The finance minister would have had to agree with the amendments that were just put forward for CEPA, Bill C-16. The finance minister said, "Yes, we will set up another fund, and we will let that money go there for environmental remediation."

That is where the money should go, to environmental remediation, to actually fix what got ruined in the first place. That is where the money should go. It should not go to a group or an organization that would benefit from those large fines. I am not sure there would be any large fines at the end of the day, but I want to make sure at the start of it that we do not allow that to happen.

That is my understanding. I do not think I am wrong. I think I have listened carefully to what has been said. The ability for private citizens to bring forward an issue is there in CEPA already, and in the amendments that have been brought forward already — not Bill S-212, but the amendments that were approved by this group — which are to allow that money, a balance of what the costs are, to go into an environmental fund. That is what I am fighting for. It is for the monies to go into the environmental fund to fix the environment for which the fine was levied in the first place, not to limit what an individual can do or bring forward. I hope I am clear on that.

The Chair: You are clear, senator. I think the record should show that the witnesses were nodding their heads with approval when you were making those comments.

Senator Peterson: I think we all agree with the thrust of the bill. We seem to be having a problem with giving up the spoils. I think people, individuals, who want to proceed with an action because no one else is should get compensated for their costs. However, for anything in addition, I do not understand what the validity of that would be. That is my position.

The Chair: In the absence of any further questions, I would like to thank the witnesses for their helpful input, not only their opening remarks, which were very clear and helpful, but their answers to the questions and their agreement to provide us with some further information. I understand they will direct it to the clerk and then we will circulate it to all members, and in particular to the bill's sponsor, Senator Banks.

Before I suspend, I would like to remind senators that after this, we will go in camera and have a discussion about our work program. After that, we will have a completely private meeting of the steering committee for a few moments.

Thank you very much.

(The committee continued in camera.)

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