Toughest Environmental
Penalties Act, 2000, Bill 124, Mr Newman /
Loi de 2000 sanctionnant par les peines les plus
sévères des infractions de nature
environnementale, projet de loi 124, M.
Newman
STANDING COMMITTEE ON
FINANCE AND ECONOMIC AFFAIRS
Chair /
Président
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Ted Arnott (Waterloo-Wellington PC)
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr David Christopherson (Hamilton West / -Ouest ND)
Mr Doug Galt (Northumberland PC)
Mr Monte Kwinter (York Centre / -Centre L)
Mrs Tina R. Molinari (Thornhill PC)
Mr Gerry Phillips (Scarborough-Agincourt L)
Mr David Young (Willowdale PC)
Substitutions / Membres remplaçants
Mr Toby Barrett (Haldimand-Norfolk-Brant PC)
Mr James J. Bradley (St Catharines L)
Ms Marilyn Churley (Toronto-Danforth ND)
Mr Joseph Spina (Brampton Centre / -Centre PC)
TOUGHEST ENVIRONMENTAL PENALTIES ACT, 2000 / LOI DE
2000 SANCTIONNANT PAR.LES PEINES LES PLUS SÉVÈRES.DES
INFRACTIONS.DE NATURE ENVIRONNEMENTALE
Consideration of Bill 124, An
Act to amend the Environmental Protection Act, the Ontario Water
Resources Act and the Pesticides Act in respect of
penalties / Projet de loi 124, Loi modifiant la Loi sur la
protection de l'environnement, la Loi sur les ressources en eau
de l'Ontario et la Loi sur les pesticides en ce qui concerne des
peines ayant trait à l'environnement.
The Chair (Mr Marcel
Beaubien): Ladies and gentlemen, if I could get your
attention, I would like to bring the standing committee on
finance and economic affairs to order. This afternoon, we're here
to consider Bill 124, the Toughest Environmental Penalties Act,
2000, and we meet for clause-by-clause consideration of the
bill.
Before we begin, I would like
to remind all members that by order of the House dated Tuesday,
October 24, 2000, at 4:30 pm today those amendments which have
not yet been moved are deemed to have been moved. I will
interrupt the proceedings, regardless of where we are with the
amendments, and at that time there shall be no further amendments
or debate. I will put every question necessary to dispose of all
remaining sections of the bill and any amendments thereto. Any
divisions required shall be deferred until all remaining
questions have been put and taken in succession. I will allow
only one 20-minute waiting period, if requested, pursuant to
standing order 124.
Before we begin the
clause-by-clause, are there any comments, amendments or questions
from the members?
Mr James J. Bradley
(St Catharines): I have an amendment that was declared
out of order.
The Chair:
Yes. Mr Bradley, I'll give you the explanation. I declared it out
of order for three reasons. One, it was received at 3:35. There
was no contact prior to 3:30 with my office or the clerk's
office. Secondly, the amendment itself was not in the proper
form. Thirdly, I thought you, being a senior member of this
House, should know the rules, orders and proceedings of the
House. That's why I declared it out of order.
Mr Bradley:
What did the amendment say anyway? I'd like you to share that
with the committee so that we can know what it said because I
think members would like-
Interjections.
The Chair:
For the record, I'll read your proposed amendment to Bill 124:
"That the name of the bill be changed to `An Act to amend the
Environmental Protection Act, the Ontario Water Resources Act and
the Pesticides Act in respect of penalties which will require a
restoration of staff and resources in the Ministry of the
Environment in order to be in force.'"
Mr Bradley:
Thank you. I just wanted to know that.
Mr Toby Barrett
(Haldimand-Norfolk-Brant): Mr Chair, just a comment on
that. I know this is not being tabled, but Bill 124 does not
require additional staff or resources to be in force. This
legislation does not amend the ministry's enforcement framework.
Even if it was tabled, there would be no need for that
amendment.
Mr Bradley:
I would disagree, but we'll leave it at that.
The Chair:
Anyway, I will not entertain further debate on the amendment. I
think I've given you your day at the table and it was ruled out
of order. We'll proceed with the amendments that have been
presented-
Mr Monte Kwinter
(York Centre): On a point of order, Mr Chair: I listened
to your explanation of the set of ground rules that we're
operating under. I didn't hear a time as to when all of this was
to happen.
The Chair:
At 4:30.
Mr Kwinter:
That's fine. I just wanted to make sure that was in fact the
case.
The Chair:
Ms Churley.
Ms Marilyn Churley
(Toronto-Danforth): I have some amendments to make that
were accepted. Should I proceed now?
The Chair:
Sure.
Ms Churley:
I have to read the whole thing, right, into the record?
The Chair:
Yes.
Ms Churley:
I move that subsection 1(1) of the bill, as set out in subsection
182.1(1) of the Environmental Protection Act, be struck out.
Should I give my explanation
now as to why?
The Chair:
Certainly.
Ms Churley: Just very briefly,
because we have limited time here, I have made this amendment to
all three parts of the bill, the Environmental Protection Act,
the Ontario Water Resources Act and the Pesticides Act. As I
mentioned in the House on several occasions when we were debating
this bill and debating the closure motion on this bill, I see the
bill as window dressing to obscure the government's failure to
take real action to protect our environment. Although I have no
objections whatsoever to increasing the penalties, I do have an
objection to the fact that I see it as window dressing when in
fact the government is not prosecuting now under the present laws
and under the present penalties.
I'm making this particular
amendment here to put back in all three of these acts-I guess
I'll have to make the same motion for the other two acts as
well-the clause that requires the provision allowing the ministry
to fine corporate directors and officers who fail to prevent
environmental crimes, not just the employees who carry out the
deeds.
As you may recall, Mr Chair,
this was with great fanfare brought to the House by the former
environment minister Norman Sterling, and we in the opposition
supported this clause. The regulations were never written to
bring this into force, and now we find-although we weren't told;
we discovered it when looking ourselves carefully through the
bill-that this section had been removed. So on one hand the
government is out there telling people, "Hey, we're bringing in
the toughest penalties ever," but quietly, in my view by stealth,
but we discovered it, a really important section in there has
been taken out.
I can't see any reason why
government members would object to putting this back in the bill.
In my view, it would strengthen it. If you're going to be out
there increasing penalties, for heaven's sake don't take away
from a positive step forward by actually weakening the bill by
taking this section out.
Mr Barrett:
In contrast, we do feel that these three motions would weaken the
bill, when you look at the larger picture. Allowing this motion
and making an amendment like this would weaken the bill because
it would give staff, for example, the discretion to issue
administrative monetary penalties rather than prosecutions for
what we consider these very serious offences.
This bill before us now, Bill
124, as we know, repeals the ability of administrative penalties
to be issued for the directors and officers liability sections,
and these special sections are considered to be very serious.
Therefore, in order to
strengthen the enforcement ability of the officers and directors,
liability offences should not be dealt with merely by
administrative penalties but rather should be pursued through a
prosecution. So repealing the ability to issue an administrative
penalty to a director or officer who violates these sections
ensures that these offences will be dealt with by using the most
severe enforcement tool that we are making available in this
legislation, namely, a prosecution.
The Chair:
Any further discussion?
Mr Bradley:
I came into this with an open mind because I've listened to both
arguments made. I discussed this as well with the minister, who
made the same case as the parliamentary assistant. Having
discussed it with people who are in the legal business of dealing
with environmental cases, it is my conclusion-and Linda
McCaffrey, a former prosecutor for the Ministry of the
Environment and with the Attorney General's office previously,
wrote in this month's Municipal World-I'll do a very quick
reading of it.
"In 1998, the government
amended the Environmental Protection Act and the Ontario Water
Resources Act to impose administrative penalties for less serious
environmental offences. The rationale for such penalties was that
prosecutions are too expensive and time consuming. The opposition
lauded this legislative initiative and the bill passed
quickly.
"Predictably, everybody
forgot all about it. The ministry hasn't developed the
regulations necessary to implement the legislation. Prosecutions
are still too expensive, and administrative penalties are not a
prospect."
I guess what this is saying
is that-and your own member, Mr Saunderson, the former member for
Eglinton, in his speech, with help from the government no doubt,
said at the time that the reason you wanted to have this option
was that sometimes you don't want to go through that court
process, and if people in the ministry having to make choices had
to go through the full court process every time, some relatively
minor examples of breaking the law would not be prosecuted. He
said, "You could compare this to the old parking ticket system,
where some people never paid their parking tickets until
apprehended."
He goes on to say:
"Now, under the new system,
you cannot renew your licence if you have any parking fines
outstanding. This is the type of legislation which is going to
make sure these companies cannot go on and on abusing the
system.
"I'm confident that the use
of administrative monetary penalties will allow the ministry
officials to respond to minor pollution offences in a timely
fashion, but will not prevent the prosecution through the court
system for more serious offences."
That option is open. I agree
with the amendment. It makes sense for that reason. I don't want
to see the directors of the company and the company president
taken off the hook in terms of administrative penalties that
could be applied where the ministry prosecutors deem that to be
the appropriate course of action.
1610
The Chair:
Any further discussion?
Mr Barrett:
Just to clarify, I wouldn't want anyone to think that this bill
repeals the ability for directors or officers to be subject to
fines or jail terms. Rather, it repeals the ability for
administrative penalties to be issued to a director or an officer
of a company that violates the officers' and directors' liability
sections in the three acts that you've referred to.
Ms Churley: I'm happy to vote on
this now. We have a disagreement. I think Mr Bradley pointed out
quite clearly why it's important to have this section there. I
think it takes away from the strength of the bill by taking it
out. I don't understand why you're doing it. We have a
disagreement. I would like a recorded vote on that.
The Chair:
Ms Churley has moved that subsection 1(1) of the bill be struck
out. It's a recorded vote.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
That is defeated.
We go to page 2. Do you wish
to read your amendment, Ms Churley?
Ms Churley:
I will make an attempt.
I move that section 1 of the
bill be amended by adding the following subsection:
"(7) Section 187 of the act,
as re-enacted by the Statutes of Ontario, 1998, chapter 35,
section 37, is amended by adding the following subsection:
"Annual report
"(9) Not later than March 31
in each year, the minister shall publish a report entitled the
`Offences Against the Environment Report' that provides the
following information with respect to the previous year:
"1. The number of
prosecutions commenced in the year in respect of offences under
this act, the number of convictions obtained in the year in
respect of offences under this act and the total amount of fines
imposed in the year in respect of offences under this act.
"2. For each prosecution that
was commenced or determined in the year in respect of an offence
under this act,
"i. the identity of the
defendant,
"ii. a description of the
charge, and
"iii. if the prosecution was
determined in the year, the result of the prosecution and the
penalty, if any, that was imposed."
I am making this amendment
because there was a time when this Offences Against the
Environment Report was released. I know under our government this
was a report that was released on an annual basis to the public.
It gave the public an opportunity to see, as outlined in this
amendment, exactly what offences had been committed, had been
prosecuted, and what the level of fines was, so people could take
a look and have an understanding of the sense of not only how
well the environment ministry was doing in terms of enforcing and
prosecuting, but also would be able to look from year to year and
see which companies were repeat offenders, and have an
opportunity to see across the province who the good players were
and who the bad players were.
That is no longer happening.
This government stopped releasing that report. I think this is a
perfect bill to pass such an amendment. I believe that nobody
would have any objection to having this amendment pass so that
that information could be available to the public.
The Chair:
Further discussion?
Mr Bradley:
Very briefly, Mr Chair. It makes all kinds of sense to have this
information available from a variety of points of view. We would
want the Environmental Commissioner to have easy access to this
information, we would want the Provincial Auditor to have it,
but, as importantly, we would want all members of the Legislature
to have that information available so we could all determine how
well the legislation is working. If we do not have that
information, we're unable to easily determine whether the
legislation is working or not and whether further amendments to
the acts that are involved in this legislation would be
necessary.
Ultimately, the public should
have this information available so they can make that judgment.
It may be that the government, looking at it, is satisfied with
the level of action within the courts or even outside the courts
in terms of prosecutions, or it may be that the government itself
is not satisfied, but certainly the public should have this
information available.
I think as well, one of the
things the ministry has said it wants to do is provide a
deterrent out there for people. They want to discourage people
from deciding to break the law in the first place. Knowing this
information would be made available each year I think would go a
long way to helping the ministry in terms of providing that
deterrent. For that reason, I will be supporting the
amendment.
Mr Barrett:
With respect to these three motions, which would require the
ministry to publish an annual report to explain those several
information categories that you've outlined in your amendment,
what we want to make clear is that this is not needed.
Legislative amendments are not required in order to have a
minister prepare annual prosecution reports. Prosecutions are
conducted in open court and the public has access to this
information. For example, the public has access to the names of
defendants, a description of the charges laid, the outcome of the
prosecution and any fine or jail term levies as a result of that
prosecution. I want to draw your attention to the fact that
currently the ministry provides press releases and Web site
postings with respect to significant prosecutions.
Ms Churley:
I don't find that response acceptable. Of course there is all
kinds of information people can gather piece by piece,
painstakingly, having to go to different sources-press releases
here, press releases there-and having to look through court
documents and files. I think it's the responsibility of the
government and the ministry to make sure that that information is
made available in one report so that people have easy and quick
access to it.
There's a precedent for it.
It's not new. It has already been done by the NDP government. I
don't know if the Liberals before us did it or not, but I know we
did. It was a useful tool,
as Mr Bradley said, for the ministry, for the public, for
everybody who is interested in this.
I would expect the minister,
who is making noises about wanting to be more responsible
environmentally-and that's what this bill before us is all about.
He's at least making the case that he's increasing the penalties,
the toughest in the universe, in the galaxy, as far as I can tell
from what he's saying, but he's not doing some of the other
things to back up that statement.
People have a right to know
about prosecutions that are actually happening. It's been done
before, and it was quite a popular report. I don't understand the
objection to this one at all.
The Chair: I
shall put the question on Ms Churley's amendment to subsection
1(7). Do you want a recorded vote?
Ms Churley:
Yes, please.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is defeated.
Mr Bradley:
Would you record that Ted's hand was shaking when it went up.
The Chair:
Shall section 1 of the bill carry? All those in favour? Those
opposed? Section 1 carries.
Section 2. Ms Churley, your
amendment on page 3 that is listed in front of you.
1620
Ms Churley:
As I mentioned earlier, this bill amends three different acts. I
believe I'm on the second one now: An Act to amend the Ontario
Water Resources Act, and the motion is the same as the last one.
I want to achieve the same purpose in each of these three
bills.
I move that subsection 2(3)
of the bill be struck out. It's the same issue as before. I
believe the government should still have the opportunity to give
administrative penalties to CEOs of companies as well as the
workers.
Again, because of time
constraints, I won't repeat what I said before, but I feel just
as strongly about it. I would hope that the government members,
especially Mr Arnott, would support me this time. I know he knows
I'm right.
The Chair:
Any further discussion?
Mr Barrett:
Again, I think everyone realizes we're now looking at the Ontario
Water Resources Act section with respect to administrative
penalties. As you've indicated, we already have discussed this
and this is similar-it really relates to the Environmental
Protection Act, subsection 1(1), that we had discussed
previously. Again, just to clarify, this bill before us does
repeal the ability for administrative penalties to be issued to
directors or officers liability sections.
Mr Bradley:
I should point out that particular provision from the 1998
legislation was never put into effect. There were never
regulations promulgated. So there have been no charges and no
fines levied under that provision.
Again, I would simply say I
had a very open mind to this, to the argument that the member
made and that others have made. Virtually everybody I've talked
to in the environmental field-two I can think of who were
environmental prosecutors with the Ministry of the Environment at
one time-say that this is a weakening of the legislation rather
than a strengthening of it.
On that basis, I'll be voting
for the amendment again.
The Chair:
Any further discussion? If not, I shall put the question on Ms
Churley's amendment that subsection 2(3) of the bill be struck
out.
Ms Churley:
Recorded vote.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is defeated.
Ms Churley, if you wish to
proceed with the next amendment.
Ms
Churley: I move that section 2 of the bill be amended by
adding the following subsection:
"(8) Section 109 of the
Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35,
section 72, is amended by adding the following subsection:
"Annual report
"(6) Not later than March
31 in each year the minister shall publish, as part of the report
published under subsection 187(9) of the Environmental Protection
Act, a report that provides the following information with
respect to the previous year:
"1. The number of
prosecutions commenced in the year in respect of offences under
this act, the number of convictions obtained in the year in
respect of offences under this act and the total amount of fines
imposed in the year in respect of offences under this act.
"2. For each prosecution
that was commenced or determined in the year in respect of an
offence under this Act,
"i. the identity of the
defendant,
"ii. a description of the
charge, and
"iii. if the prosecution
was determined in the year, the result of the prosecution and the
penalty, if any, that was imposed."
I make the same argument
again as I made the last time and I perhaps will make it more
strongly. I would appeal to my colleagues on the Tory side who
have the majority there. This is a reasonable request, and I
believe that if you don't at least support this, your argument
that you're actually trying to strengthen laws is quashed. This
is giving the public
information about what you're actually doing out there on an
annual basis.
Right now we know
prosecutions and fines are way down under your government with
existing levels. If you're really serious and committed to this
bill, which obviously is going to pass today because you have the
majority, then why would you object to having written right into
the law that there has to be a report every year telling the
people all the great things you plan to do, the convictions and
prosecutions you plan under this act? It would only make sense.
It's logical.
Mr
Bradley: In support of the amendment, I would say that I
think people believe it is difficult to get information easily
from government. This would make it easier for people to have
access to that information to make their judgments, either to put
pressure on governments, whoever they happen to be, to amend
their legislation to be more effective or to applaud governments
for making it effective. I think that is a goal we could reach
with this amendment.
Second, I mentioned before
that governments in general these days don't want the public to
know what is going on, as much as possible, if it could possibly
be embarrassing. Sometimes it isn't. But what you do is you
simply protect polluting companies. Not only does the public not
like that, but I'll tell you who else doesn't like it: good
companies. Most of the companies out there are very good
companies. They don't break the law. They want to see you put the
finger on those companies which do and they don't want to see
those companies which break the law making a greater profit as a
result. On that basis I think it's a very sensible amendment and
I certainly support it.
Mr
Barrett: Again, we do object to this amendment.
Prosecutions are conducted in open court and the public does have
access to information; for example, the names of defendants and
descriptions of charges laid and the outcome of the prosecution
and the nature of any fines or jail terms.
Just following up on Mr
Bradley's comment, the information will get out, and certainly it
is becoming very clear that only companies that defy the law or
engage in practices that are damaging to public health and the
environment or cut operating or maintenance costs that result in
an expense or damage to the environment need worry about these
tougher penalties. Just to reassure Mr Bradley, this bill will
level the playing field. Those who flout environmental laws will
not benefit at the expense of good corporate citizens which do
comply with environmental laws.
Ms
Churley: I think we're almost on a 4:30 deadline here,
so I don't know if we're going to get to my other amendments.
I submit to you, in
response to what you said, Mr Barrett, that it's just the
opposite. As I said earlier, under your government-and it's
documented, we pulled the pieces together-there have been fewer
prosecutions and fewer fines than under the NDP government. That
is with the existing penalties as they are now.
I submit to you that the
reason why you don't want to support putting this in the
legislation is that you don't want, as a government, the
embarrassment of having to put out every year a document that
shows how few fines and prosecutions you're actually conducting
under this bill, that you're going to try to sweep it under the
rug. We disagree on that, but given the environmental record of
your government to date, the idea is to have this on paper,
toughest penalties in the world, but not actually prosecute. I
think that's a shame. If you really meant this you would put your
money where your mouth is and allow this to go into the act so
that this report would be an annual report for all eyes to
see.
The Chair:
I shall put the question on Ms Churley's amendment to subsection
2(8) of the bill.
Ms
Churley: Recorded, please.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is defeated.
Shall section 2 of the bill
carry? All those in favour?
Those opposed? That
carries.
It being 4:30, pursuant to
the orders of the day, at 4:30 on the final day designated by the
committee for clause-by-clause consideration of the bill, those
amendments which have not been moved shall be deemed to have been
moved and the Chair of the committee shall interrupt the
proceedings and shall, without further debate or amendment, put
every question necessary to dispose of all remaining sections of
the bill and any amendments thereto. Any division required shall
be deferred until all remaining questions have been put and taken
in succession with one 20-minute waiting period allowed, pursuant
to standing order 127(a).
So we shall proceed to
section 3 on page 5 of the material in front of you.
Ms Churley has moved that
subsection 3(1) of the bill be struck out. All those in favour of
Ms Churley's amendment to subsection 3(1)?
Ms
Churley: Recorded vote.
The Chair:
If you want it recorded, we'll do the recorded vote after. It
will be deferred until the end.
Ms
Churley: OK. I want it recorded.
The Chair:
Then we shall proceed to page 6.
Ms Churley has moved that
section 3 of the bill be amended by adding the following
subsection-it's on page 6 in front of you. It's recorded, so
we'll defer it.
We'll proceed to page 7 in
front of you dealing with section 4.
Ms Churley has moved that
section 4 of the bill be amended by striking out subsections
1(1)-I don't think I have to read it; it's in front of you.
You've called for a recorded vote on this.
We'll proceed to section 5 of the bill, which is
the short title of the bill.
Shall section 5 of the bill
carry? All those in favour? Those opposed? That's carried.
We'll now proceed to
section 3 on the recorded vote that Ms Churley has requested on
subsection 3(1).
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is lost.
We'll proceed to subsection
3(7), Ms Churley's amendment.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is lost.
Shall section 3 of the bill
carry? All those in favour? Those opposed? Section 3 carries.
Section 4 has a recorded
vote.
Ms
Churley: It's moot now. We can vote on it, but since the
others failed, this no longer is relevant. It's moot. It depends
on the passage of the others.
The Chair:
We still have to deal with section 4. You requested a recorded
vote.
Ms
Churley: Right. My actual amendment is moot by the
failure of the others.
The Chair:
That's right.
Ms Churley has moved an
amendment to section 4 on page 7 in front of you.
AYES
Bradley, Churley,
Kwinter.
NAYS
Arnott, Barrett, Galt,
Molinari.
The Chair:
The amendment is lost.
Shall section 4 of the bill
carry? Those in favour? Those opposed? That carries.
