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Standing Committee on Environment and Sustainable Development



Thursday, May 7, 2009

[Recorded by Electronic Apparatus]



     We can start the meeting; it's a little after nine o'clock.
    Welcome to the officials, again. We will get started, because we're trying to finish this bill as quickly as possible. In that regard, I believe there are some rumours circulating that the government members might be presenting some kind of motion to deal with the possibility that we won't be through clause-by-clause by 11 o'clock.
    Would you like to speak to that, Mr. Warawa?
    Yes, Chair.
    I've talked to you and every member of the committee, reminding them of the schedule to complete clause-by-clause today.
    Chair, if necessary, I'll be proposing that we continue the meeting after 11 o'clock to make sure that we do complete clause-by-clause on C-16 today.
    Mr. McGuinty, please.
    Mr. Chair, I just want to get on the record.
    What clause are we at now?
    We're at clause 18, I believe.
    We're at clause 18 and we have a 128-clause bill. Is that right?
    Apparently. Anyway, we have a big bill.
    We have 128 clauses. We're at clause 18, so that means we have 110 clauses to go through in one hour and 55 minutes. We'll do our best to do that.
    Through you, Mr. Chair, to Mr. Warawa, I've heard from my colleague Mr. Bigras that apparently the government whip is saying that if this is not finished today, then the oil sands and water study to be conducted by this committee will be cancelled next week. Is that the case?
    Chair, I think time's a-wasting. What I had shared with the committee is the importance of finishing this, and if necessary, that this meeting should go longer than the 11 o'clock schedule. We need to finish this today so that we can go to oil sands.
    Thank you.
    Sorry, Mr. Chair, I need some clarification.
    Through you to Mr. Warawa, I've heard nothing of this. I heard it from my colleague three minutes ago. My whip has not informed me of any such thing. I'm just trying to get a sense of whether the government is now telling the committee that it cannot go to the oil sands and do its trip on Sunday, Monday, and Tuesday of next week if this bill isn't finished by 11 a.m. this morning.
    Chair, I would like us to get back to the schedule
    We'll proceed and deal with this issue perhaps at the end of the meeting, Mr. McGuinty, since Mr. Warawa doesn't appear to intend to....
    Yes, Mr. Bigras?


    Have we just agreed to continue our study of Bill C-16 and to continue holding hearings until we have completed our work?
    As I see it, Mr. Bigras, we have made no such undertaking. No motion was tabled or voted on.
    In theory, the meeting ends at 11 a.m.
    In theory, yes.
    Fine then.
    Next, we have clause 18.
    Mr. Bigras.
    Had we not deferred clause 17?
    Yes. We will come back to it at the end.
    (Clause 18 agreed to)


    Just as an aside, if I'm not mistaken, I believe we have a couple of guests in the room today observing the meeting. I'm told there is Mike Mercredi from the Fort Chipweyan first nation and George Poitras from the Mikisew Cree First Nation here with us today.
    Welcome to our deliberations. Thank you for coming.
     I should clarify that I am actually a member of the ACFN.
    I apologize for that error on my part. Welcome.
    Ms. Duncan, are you ready to present NDP-1 in regard to clause 19?
    (On clause 19)


    The legislative clerk has asked me to ask you to clarify that you're moving NDP-2.1 and not NDP-2.
    We're moving NDP-1--
    NDP-2.1. Is that correct?
    Yes. We're very grateful for the assistance of the House of Commons legislative drafters and to the Library of Parliament staff who made some corrections in the drafting. So somewhat later than we originally tabled them, we proposed corrected ones.
     If I could explain, Mr. Chair, the purpose and intent of what we're proposing....
    Right now the amendments proposed by the government provide that all of the proceeds of all of the fines imposed by convictions under these various statutes, including CEPA and other environmental statutes contained in Bill C-16, would go to the environmental damages fund. What my amendment, the NDP amendment, proposes is that the exception to.... I should clarify that later on, the government actually makes provision for the judge to recommend to the minister that a portion of the penalty imposed could instead go to an individual or organization rather than the fund.
    The purpose and intent of our amendment is several-fold. As I said, we appreciate that some recognition is given to the fact that it may be appropriate for some of the fine to go to other parties than to this fund, but our recommendation is that's the wrong route to go. I've talked to a number of environmental prosecutors across Canada to confirm my discomfort with that. Under our constitutional system of government, our democratic system, the judicial and executive functions are very carefully separated. What the government's proposed amendment does is to blur those lines. I would welcome the government outlining to our committee any other circumstance where there is a judge making a recommendation to an elected official to do something. The provision is that a judge may recommend to the minister to give some of the proceeds of the fine that's going to the environmental damages fund to somebody else, which the minister may or may not agree with.
    What we're proposing is something much cleaner and more consistent with the way the democratic system in Canada works, where the judicial and executive functions are separated. We had a bit of a discussion about this in our last meeting. What usually occurs in the prosecution, and is very common now in environmental prosecutions—and there is a whole book now on innovative environmental sentencing, which I encourage members to look at, if they have an opportunity—is that the enforcement officers, the investigators, actually make recommendations to the prosecutor on sentencing. The prosecutor in turn makes recommendations to the judge in those cases where they deem it appropriate. For example, if a river has been damaged and there's a river-keeper organization, they know about that through the department and their ongoing relationships and they'll make a recommendation. That is a much cleaner way of doing it. In the case of the Ontario region, for quite some years they've actually been compiling a list of organizations that do good work on the environment, and they have categorized them, for cases in which they do bring a prosecution, so that they can recommend appropriately, and already know about the organization. So that's the process that usually proceeds.
    What we are proposing through this set of amendments is to provide, instead, that all funds, all proceeds, and all of the fines in an environmental conviction go to the environmental damages fund, except.... And then a provision is added saying that the court has the power to determine that it will award all or a portion of the penalty to an individual or organization.


    I'm not finished yet. I have other arguments for it.
    Can I ask you a question?
    So rather than the law saying that the judge can ask the minister to give money to an organization, the judge would give the money directly to the organization.
    That's right, and it removes any semblance of interference or any inappropriate factors. Instead it comes from the enforcement officers themselves, who obviously confer within the department. It also separates the judicial and executive functions.
    Let me give the remainder of my arguments for this, and then I would welcome discussion, if that's all right with the chair.
     Go ahead, please.
     I'm making this proposal specifically because the government, in bringing forward the statute, argued that the purpose and intent of Bill C-16 is to provide for harmonization and consistency across federal environmental statutes, but there's one key environmental statute that is missing from this bill, curiously, and that's the federal Fisheries Act.
    The reason why that's curious is federal enforcement agencies have used the federal Fisheries Act more than any other statute, including the Canadian Environmental Protection Act, to prosecute environmental offenders. And that is significant because in the federal fishery general regulations, which were updated as recently as 1993, section 62 provides that “Where an information is laid by a person in circumstances other than those referred”—in other words, laid by the government—“relating to an offence...the payment” of the proceeds of any penalty “shall be made...(a) one half to the person”. In addition where any materials are seized and disposed of, a portion of those proceeds are also to be awarded one-half to the person who files the private information.
    That has remained in federal law for quite some time, and there have been occasions where those costs have been awarded. That right to file a private prosecution rests in the Criminal Code of Canada. There are exceptions. The Yukon's Environment Act and the Northwest Territories' Environmental Protection Act also specifically provide the right of an individual to file a private charge against a violator of those statutes.
    So the right of a private prosecutor exists, despite whatever provisions exist in the federal environmental statutes. What that provision in the federal Fisheries Act recognizes is the fact that at any point in time, the Attorney General, whether provincial or federal, has the right to intervene and to stay or stop the proceedings or to intervene and take over the prosecution. And both have occurred from time to time in Canada where private charges are brought.
    We have more recent precedents where in fact the court is allowing the private prosecutions to proceed. In some very unique and encouraging situations in Ontario, the Attorney General has actually cooperated with private prosecutors and proceeded to prosecute the case together cooperatively. So as we have organizations such as Ecojustice that have qualified lawyers working full time who are fully skilled in doing these cases, the courts and some governments are recognizing the valid role.
    It's also important to recognize that a number of very important cases were initially instigated by a private charge being laid. In the first major case in the tar sands, against Suncor, the charges were laid by the chief of the Fort McKay Indian Band. That case was then taken over by the Alberta prosecutor and proceeded with and Suncor was convicted.
    Another case that has been discussed in our proceedings is the current charge against Syncrude on the oiled birds in the tar ponds. That case, which is now proceeding through the courts, was initiated by private information laid by individuals in Alberta. So on a number of occasions the crown has determined that yes, the charges are valid and they will proceed. Other cases have been stayed.
    So the crown has the full authority at all times to intervene to stop a prosecution if they don't think it's valid or to take over the case and proceed and convict. You need to recognize, too, that when you bring private charges in court, there is now in the criminal courts a proceeding where the court actually evaluates and determines whether or not there is a prima facie case, whether the case should proceed. So a prior prosecution cannot proceed to the court unless there has already been that first level of determination.
     In the instance that they actually obtain a conviction, then it's very clear that it was a valid charge and there was a lot of private work involved and the hiring of private expert witnesses. What the federal government has recognized in the federal Fisheries Act is that there should be some mechanism for award of costs to help that prosecutor, because otherwise all of the proceeds go to the government. In the case of a private prosecution, in the Fisheries Act the court is required to award half of any penalty to the person who laid the charge.


    What I have proposed in my amendment is to give greater discretion to the court to award any or all, so they can look to other precedents, such as the Fisheries Act, in determining that. Also, it is important to recognize that the practice across Canada has been not to award substantial costs in proceedings in the criminal court, so without these provisions, there really is no possibility of awarding any costs of any substance to the private prosecutor to compensate for the costs they have incurred.
    The final point I would make on this is that we have been advised that the very purpose and intent of Bill C-16 is to fetter the discretion of the courts. Particularly in the case of CEPA, the government is adding a three-tiered process to go through, telling the courts precisely what they must go through in determining whether or not they will convict.
    In keeping with that, it's only sensible that we provide clarity to the court in the matter of private information and private prosecutions.
    What we'll perhaps do, given that it brings an amendment to his....
    I'm sorry, Mr. Woodworth.
    Thank you, Mr. Chair.
    In 1995 the Liberals did a good thing. They created the environmental damages fund. What our provision intends to do is to enhance and broaden the effectiveness of that environmental damages fund. As an example, in 2005 the Migratory Birds Convention Act, 1994, was amended to do exactly what we're trying to do here across the board; that is, to direct that all penalties under that act should be paid to the environmental damages fund. Before that amendment came into effect, over 10 years before that, there was only one award of $5,000 made to the EDF. Since that amendment came into effect four years ago, there have been 11 awards totalling over $90,000 directed to the EDF. These have resulted in nine projects across Canada.
    What we want to do is take that success story from the Migratory Birds Convention Act and apply it across all the environmental statutes we're amending here today. I would very much hate to see that good and noble effort diluted by suggesting that instead of going to the environmental damages fund, these moneys should be going into private prosecutions.
    So I'm opposed. Thank you.
    Thank you, Mr. Woodworth.
    Does anyone else wish to speak to this amendment?
    I wish to hear from the officials.
    Mr. McGuinty was hoping to hear from the officials on this.
    I'd be happy to explain a little bit about how the EDF is currently managed, as there may be some misunderstanding in that regard, Mr. Chairman.
    Go ahead, please.
    The EDF is a specified purpose account. It was established for the management of court orders and awards or other financial compensation to Environment Canada for damages to the environment. The sources of the funds that go into the EDF are court orders, i.e. fines, which account for approximately 80% of what goes into the EDF. There are also out-of-court settlements, voluntary payments, and there is the possibility for awards provided under various international funds, but none of those have been done to date.
    In the case of court awards, which are the primary concern here, currently the EDF receives money from the court award only if the judge specifies in the order that it should go to the EDF. The default is that it would go to the Consolidated Revenue Fund, unless it is specified. It also occurs in about 15% of cases that the court will order money to go to a specific individual, which means it goes neither to the EDF nor to the CRF. About 55% of the orders go to the EDF, about 30% default to the Consolidated Revenue Fund, and about 15% go to specified individuals or organizations.
    Environment Canada administers the EDF by allocating money from court orders to organizations in the community in which the environmental damage occurred. This is done through contribution agreements for projects directed at environmental restoration, improvement, research and development, and education.
    Environment Canada follows an open and transparent process to request proposals from local organizations and selects the best proposal based on its overall merit in achieving the purposes of the project.
    The EDF is administered through Environment Canada regional offices. Officials in the regions develop management plans for the best use of the funds, in part through discussions with internal and external experts, including other government departments, local NGOs, academics, and such.


     That helps clarify quite a bit.
    Is there a need for Ms. Caron to go on?
    I have a question of Ms. Caron, through you, the chair.
     If $50,000 comes in from a particular infraction, is there a sense that the EDF officials will simply accept that $50,000, put it in the big pot, and then decide where it's best spent, or is there a sense that because this came in on this infraction, can we then spend it back on fixing the infraction?
    That's an excellent question, Mr. Chairman. It was getting to the next point I would make, which is that this is run by Environment Canada as a very targeted program. Therefore, the amount of the court order is directly tied to the project, down to the dollar. In addition, the default, the beginning point, is that it should be a local environmental restoration project targeted at the damage that actually occurred.
    What the EDF administrators have found is that almost all of the time this works in a good fashion, and there are cases where the courts will direct or indicate that the fine must go to a specified project. It goes to the EDF but it must be for a particular project. Most of the time that has worked out all right, but there have been instances where the court gave direction and it was not actually possible in practice either to get any proposals from anyone to do the work or it was not just a viable project at all, and I have some examples of that.
    One example that stays in my mind is an order to restore a tributary of the Barbara Weit River. It was found that actually that tributary had dried up and there was no possibility to do the work. What that necessitated was to return to the court, open up the court's order and release that restriction respecting the funds, which tied things up for approximately three years.
    I believe what the provision is trying to do is to allow for some flexibility when necessary, but indeed the program is run in a very targeted manner.
    Madam Caron, you've given us a good explanation of what the presentation is, but you haven't uttered a word about Ms. Duncan's proposed amendment. What I need to hear from officials is how do you react to the proposed amendment put forward by the NDP critic, not what is the position here. We understand the position. What is your reaction to Ms. Duncan's proposal?
    With respect to the provision in the bill that indicates that a judge may make a recommendation, the purpose for including that was because there have been many cases in which the judges have currently specified where they wanted the funds to go, so we're trying to allow for judges to continue to do something to that effect but without being so restrictive. So that would be part of the actual court order, and it would not establish an ongoing relationship between the executive and the judiciary, but rather it would be in the order, and we would, as we do now, continue to try to apply the funds in a directed fashion but with particular attention to what the judge indicated.
    With respect to the issue of fine splitting, certainly the purpose of this provision in the bill does not at all address fine splitting, so that would be introducing an entirely new purpose to this provision.


    And the position on private prosecutions?
    Mr. Chairman, I feel that my role here as a public servant is somewhat constrained in that I'm not really at liberty to speak about policy alternatives that are discussed by the committee members. Really, I speak on behalf of the minister, and I wouldn't want to undermine the responsibility and accountability of a minister.
    Yes, Mr. Chair.
    If my amendment is rejected, I worry that the act will not be read properly or will not be consistent. It's worth noting that the current Canadian Environmental Protection Act, in section 278, has exactly the provision that occurs in the federal Fisheries Act, and it empowers essentially the cabinet, the Governor in Council, to make regulations to prescribe how the proceeds are to be allocated in exactly the same way that the regulations under the federal Fisheries Act are.
    It does not make sense for these regulations to be made unless my amendment goes through, because unless my amendment goes through, all the proceeds go to the environmental damages fund, and therefore there is no remainder that may be allocated to a private informant or private prosecutor.
     Is that true, Ms. Caron?
    I would just underline that the Fisheries Act was not part of the exercise of harmonization, as we've talked about--
    But is Ms. Duncan correct, that if we don't make this amendment there is no opportunity to send some money to a private organization, that everything goes through the environmental damages fund?
    Actually, I'd like to turn it over to Ms. Cosgrove. There is another provision in the bill, part of the full suite of remedial orders that can be made in creative sentencing, that relates to community groups. Ms. Cosgrove would be able to explain that to the committee.
    Go ahead, Ms. Cosgrove, please.
    The full suite of court-ordered powers that are proposed include the ability for the judiciary to order, in addition to a fine, funds to community organizations connected to and in the geographic area of where the offence took place.
    That particular creative sentencing tool exists right now in the Canadian Environmental Protection Act, but it does not exist across the board. Between the bill provisions and the government motions proposed, that particular court-ordered power should be, if all that passes, in place across the board for all nine statutes.
    Is there need for more debate on this?
    Go ahead, Mr. McGuinty.
    I just want to address Ms. Duncan, through you.
     Ms. Duncan, in the last meeting I raised the notion of intervenor funding. Do these amendments speak at all...? I've had an awful lot of conversation with a few MPs around this table, and I still don't understand what you're saying.
    Is this about intervenor funding? Is this really about making money available for private prosecutions to be launched in order to enforce Canadian environmental law and regulations? Is this what this is really about?
    Well, I think I've been quite forthright that this is exactly what it's about.
    It's important, Mr. McGuinty, to clarify that intervenor funding has to do with, say, environmental assessment proceedings or tribunals. That's to do with administrative review. We're talking here about the cost of proceeding with a prosecution. We're talking about the occasion where a prosecution proceeds, is successful, and convicts an accused--so therefore the information was valid in the case where the private prosecutor is proceeding--and the crown, who has complete discretion to intervene to stop that, has chosen not to. In other words, they found it was in the public interest to allow the private prosecution to proceed.
    It's simply a case of reasonableness. Where the government has chosen not to proceed with the case, therefore private persons have had to incur the costs of a prosecution. That would include bringing forward expert witnesses, simply paying for the prosecutor.
    If you look at the potential scale of the penalties that are under these statutes, and that are being raised by the government, we're not talking in the order of $6 million. We're talking about very reasonable amounts of money for a criminal proceeding and to cover the costs.
    So it's very much related to cost; it would not otherwise be available. It in no way takes away from the creation of the environmental damages fund. It in no way takes away from the potential for contributions to the environmental damages fund. But if you look to the experience in the courts, what is happening more and more is that instead of awarding a monetary penalty, particularly in the case where a crown agency or a government department is being prosecuted, which the federal government does regularly, it doesn't make sense to impose a penalty. What they're doing instead is imposing the requirement to train, or the requirement to buy additional equipment, or the requirement to invest in cleanup and so forth. In fact, the monetary penalty is in many cases much less significant than the additional costs incurred by the accused to repair, or to avoid, into the future.
    I appreciate the provisions that were raised. I've gone through the statute to see if it's accommodated otherwise. But in many cases, the person who does the prosecution does not necessarily live in the vicinity. They would be excluded by that provision.
    We're not talking about an award of costs to a group that has worked to save the lake or the river, or to prevent oil pollution and so forth. We're talking, very discretely, about the power of the court to award, in their discretion, costs for proceeding with the prosecution. That is specifically what it is about.
     It's regrettable that the government has not chosen to issue any regulations under section 278, which previous governments have done under the federal Fisheries Act. Those regulations, as far as I'm aware, have not ever been issued under CEPA.
    So we need certainty and we need consistency. That is why I'm bringing forth this provision.


    You need two things for effective enforcement. You need strong laws and you need the political will to enforce.
    Wouldn't it be nice if we didn't have to have private prosecutions? But in those cases where we don't have the political will, that right is given under the Criminal Code. These statutes do not take away that right under the Criminal Code to bring that private prosecution. This is simply accommodating and being consistent with the federal Fisheries Act.
    Could I ask the officials, is this going to lead to a whole series, a new category, of prosecutions? Is this going to lead to vast numbers of prosecutions?
    Mr. Chair, I believe the comments from Ms. Duncan are accurate. Although this is fairly rare, it is allowed under the Criminal Code.
    I can only speculate, Mr. Chairman. I think the numbers are quite small today, and as Ms. Duncan points out, it doesn't create a new power for private prosecutions. It's the power that exists currently. It would be my expectation that the numbers wouldn't dramatically increase.
    Mr. Chair, I understand that in certain areas, like under the NAFTA Commission for Environmental Cooperation, there's a provision to have individual complaints be levied. You have private members bills...for example, my colleague Mr. McKay, is bringing in a private member's bill in which individual complaints can be levied, which leads to investigation and reporting about whether or not environmental standards are actually being enforced. That, I understand, we've gone a certain distance on.
    From the officials' perspective, and maybe the government's, is Ms. Duncan asserting that the trend in environmental law enforcement is to provide for private prosecutions, that the crown is favourably disposed to private prosecutions, that the Criminal Code permits private prosecutions? Can anyone answer the question, please?
    Is this a trend, or is this something Ms. Duncan is trying to help break through? Can anyone help us understand before we vote on this?
    Mr. Chairman, unfortunately I can't speak on the issue of whether there's a trend toward private prosecutions.
    Are there any more questions, Mr. McGuinty, on this issue?
    Mr. Chair, I would like to speak to that issue.
    The provision in the federal Fisheries Act has been there for almost 30 years and has not created a flood of private prosecutions.
    It's a valid answer.
    Are we ready to vote on this?
    Yes, we are.
    We're voting on amendment NDP-1.


    Actually, I think I'm tabling the whole suite to save time.
    The vote would apply to amendments NDP-2.1, NDP-3, NDP-4.1, NDP-5, NDP-6.1, NDP-7, NDP-8.1, NDP-15, NDP-16.1, NDP-17, NDP-18.1, NDP-19, NDP-20.1, NDP-21, NDP-22.1, NDP-23, and NDP-24.1.
    They're all the same.
    That's my understanding.
    They're the same thing, but for different acts.
    We're going to vote on Ms. Duncan's amendments.
    (Amendments negatived)
    (Clauses 19 and 20 agreed to)
    (On clause 21)
    We have a Bloc amendment, BQ-2.
    This vote will apply to BQ-4, BQ-6, BQ-8, BQ-10, BQ-12, and BQ-16.
    What page is it on?


    Go ahead, Mr. Bigras.
    Mr. Chair, these amendments concern clauses 21, 30, 44, 58, 93, 97, 109 and 118. I'm referring to BQ-2.
    I move that Bill C-16, in Clause 21, be amended by replacing, in the French version, line 16 on page 27 with the following:

“gnent peuvent entrer sur une propriété privée”.
    The purpose of this amendment, Mr. Chair, is to ensure agreement between the French and English versions. At issue here is the right of passage. We are proposing to replace “dans une propriété privée” by “sur une propriété privée”. The English version of the act is worded as follows: “may enter on and pass through”. It would therefore be preferable, in our opinion, to substitute the word “sur” for the word “dans”. This would be a simple linguistic amendment.
    Thank you, Mr. Bigras.
    Go ahead, Mr. McGuinty.
    Mr. Bigras, the text of the proposed amendment is exclusively in French.
    Could you explain the English text to us?
    As I just explained, the purpose of the amendment is to ensure agreement between the French and English versions.
    Let's look at the English version. Do you have it handy?
    It reads as follows:


“may enter on and pass through”.


    The current French version says “peuvent entrer dans”. We are suggesting that it read instead “entrer sur”. The word “sur” would be substituted for the word “dans” in the French version.
    That's not what I mean. I was referring to the text of the amendment. Do you understand what I'm saying?
    Yes, I understand.
    This is a technical amendment to the French text.
    That's correct. I cannot amend the substance of the provision.
    I understand.
    Would anyone care to comment on this amendment? Would departmental officials care to add to what Mr. Bigras said? Do you agree with the proposed amendment?
    Thank you for your comments, Mr. Bigras.
    In the bill, we are proposing that agents be allowed to freely enter property, whether land or a building, to carry out inspections, to discharge their duties.
    In my opinion, there is agreement between the two versions. In this particular instance, we rely on our jurilinguists who revised the bill.
    Would you have anything to add to that, Lucie?


    Regarding the process followed when drafting legislative texts reviewed by jurilinguists, care is taken to ensure agreement between the French and English versions. The drafters also bear in mind our bijural legal system which is based on both common law and civil law principles.
    They assured us that it was entirely appropriate in this instance to use the word “dans” as this better reflects the English concepts of “enter on” and “pass through or over”. Inspections can be conducted not only on land, but also inside buildings, and so forth.
    I understand what you're saying. However, why is it that to the right of this provision, in the margin, no mention is made of entering a building? The reference here is to the right of passage. Correct?
    In fact, you've just demonstrated that the clause and the proposed change do not concern solely the right of passage. The aim here, by using the word “dans”, is to broaden the application of this provision, whereas in the English version, that is not what is written. The reference is to the right of passage.
    I don't understand your explanation of the word “right” and the expression “ right of passage”, if this right extends to entering a building.
    The expression “private property” is used in English. In my view, “private property” has a fairly broad meaning.


    Just for clarification, as I don't want to mislead the hon. member, it's not our intent to go into private property without the proper authorizations. That's why in the English it does say “over” or “through” or “over private property”. It's not intended to create the right to go into private property; it's a right of passage to allow them to carry out their duties.


    May I ask a question? Would adopting Mr. Bigras' motion pose a problem? Would there be consequences, from a legal standpoint, or in terms of how the act is interpreted?
    Go ahead, Ms. Bourbonnière.
    I believe this provision is found in a number of federal acts. The proposed wording is similar to what is found in other federal acts. For the sake of consistency, I think it's preferable to keep this wording.
    Would we be taking a risk by going along with Mr. Bigras' proposed wording?
    While I'm not a jurilinguist, my concern is that some may argue, if we substitute “sur” for “dans”, that there is a discrepancy between the two versions.
    So then, you do have a concern. You've just answered my question.
    Mr. Trudeau.
    As I see it, the difference between “dans” and “sur” is that if a person must enter a dwelling or building to get to the property in question, the word “dans” allows that. However, if the word “sur” is used, then this does not automatically allow a person to pass through a building. I'm not sure if this relates in any way to the right to search a building. That may be an entirely different matter. It merely concerns the right to enter or pass through a building to reach the place where duties can be discharged.
    Therefore, I would be concerned, if we opted to go with “sur”, that persons would have access only to the land, and not to buildings. Access is not restricted by the use of the expression “dans une propriété privée”.


     The intent of this passage is not to contravene any of the procedures that are standard procedures for requiring warrants to enter into private property. This would not give any rights that would go counter to standard procedures that would require a warrant.



    That is precisely the point that I wanted to discuss. On page 106 of the bill, under “Inspection”, the following is noted in section 13:
(2) An enforcement officer may not enter a dwelling-place without the occupant's consent or a warrant issued under subsection (3).
    I'm trying to understand. Pursuant to section 20.1 “[...] enforcement officers and any persons accompanying them may enter on and pass through or over[...]”. At the same time, however, pursuant to subsection 13(2), “an enforcement officer may not enter a dwelling-place”—in other words private property—“[...] without the occupant's consent or a warrant issued under subsection (3)”.
    The fact is that a distinction is drawn between a private dwelling-place, for example, and another type of building, for example, a warehouse, a place that does not have the same...
    Is a warehouse considered to be private property?
    Yes, but in this instance, expectations as far as privacy is concerned are vastly different. Some buildings, for example, are more accessible to the public.
    So then, as I understand it, this subsection deals with the right of passage, whereas further on in the legislation, there are provisions that grant certain powers to the enforcement officer, provided that person has a warrant.
    We can check into the language used, but I maintain that the French version of this provision grants greater authority to enter on or pass through property than the English version does. That's the impression I get. We want this provision to be amended to read “sur une propriété privée”, taking into consideration the right of passage and the fact that enforcement officers must have a warrant before they can inspect a dwelling-place.
    Yes, the provision deals with the right of passage of persons in the discharge of their duties. If, in order to discharge a certain duty, a warrant is required, then this provision does not alter any other provision in the act.
    Is there some way, Mr. Chair, to check the scope of the wording used? I appreciate the witness saying that similar wording has been used in the past, but let me tell you that in my 12 years of experience serving on various parliamentary committees, I've seen cases where the words used in the French version did not have the same significance as the English words. We proceeded to amend these bills in committee and after checking into things, we found this to be the case.
    It's not a question of bad faith or incompetence. I simply want to be sure that the French and English versions mean the same thing.
    Are you asking that we defer this clause, as we did for...
    We're proposing an amendment to clause 21, but clauses 30, 44, 58, 97, 109 and 118 are also affected by this...
    I'd like to turn the floor over to Mr. Woodworth. All right?


     Thank you.
    I understand the point Mr. Bigras is making. With the greatest respect to the officials, I also understand the desire of lawyers to maintain consistency, but I really don't see a strong problem with Mr. Bigras' amendment and I'm going to support it.
    I have Ms. Duncan first, and then Mr. Trudeau.
    I'm wondering if the lawyers can explain to me if this right of passage is also provided for in other statutes, or is this something peculiar to investigating ships that you would have to go through?
    You mentioned the fact that there's a requirement to have a warrant and so forth, but it is peculiar that this one specifically deals just with the right of passage. It would appear that the interpretation of the wording should be consistent with providing right of passage through a shipping facility, and so forth, which would help us. It's hard to read this outside the context of the statute. Maybe this might explain how we should be interpreting it.


    I would just like to ask Ms. Cosgrove if she has a table that covers all the statutes this affects.
    The answer to your question is that this type of provision is not unique in this bill or this statute. In terms of this bill, the concept already exists in five of the nine statutes we are amending. These are just amendments to make the text consistent across the board. There's really nothing unique in terms of ships or the maritime context. The concept applies across the board to all potential applications of these statutes.
    But does it specifically or simply have to do with ensuring that the officer has that right? So an officer would arrive at the ship and say, here's my card, and under the provision of this law I have the right to pass through this ship in order to get to what's happening on the other side. Is that specifically what this has to do with? It's not just the right to enter and inspect inside the ship, but it's meant to be about the right of passage through.
    This is meant to be the right of passage through private property, land-based or other. The powers for entering properties for inspection, investigation, and other are found in other provisions of the statute.
    In other provisions, okay.
    I think we're almost ready to vote on this.
     Mr. Trudeau, did you want to say something?


    The right of passage and the right of inspection are two very different things. We've already determined that. The right of passage is an important right that we do not want to restrict in order that our officers may discharge their duties.
    I have a question for you, Mr. Bigras. Do you think that substituting the preposition “sur” for “dans” weakens or strengthens the right of passage?
    The issue is not whether substituting the wording with “sur une propriété privée” strengthens or weakens the right of passage. The issue is whether or not enforcement officers must have the right to enter on or pass through or over a property. I see a problem here in the French version with inspectors or enforcement officers being able to enter on or pass through a property.
    Perhaps the English version could be amended. I don't know whether it is possible to amend that version to read “may enter into”. I don't know, but it seems to me that we cannot have two different versions.
    You are quite right.
    Let me put my question then to officers.


     I'll ask this in English. Is there a difference in your mind between “enter on and pass through or over” and “enter in and pass through”? Does “enter on and pass through or over” include the right to walk through a building, house, warehouse, or ship in the main sense that the handy word “dans” does in French?
     Would you like to answer that?
    Our understanding, from discussions with drafters, is that the way this particular provision is crafted in English would allow our enforcement officers, or anyone designated, to pass through buildings in addition to over property that didn't have buildings resting on it.
    Okay. Therefore, since “sur” in French would not necessarily allow the ability to walk into buildings, I think the modification actually weakens the French version and diverges from the sense of the English version.
    Thank you, Mr. Trudeau.
    Is there more discussion on this, or do you think we're ready to vote?
    Ms. Duncan.


    I don't want to be difficult, but not being linguistically inclined, can somebody please offer me a clear definition of the two words so I can decide?
    “Sur” versus “dans”.
    “Sur” means on the surface, at least the way I understand it. “Dans” means inside. “Sur une propriété” means that you can go over someone's property, but not into someone's house. It's that kind of thing.
    So it's the issue of consistency. If the government wants all acts to be consistent--
    Okay. I think we're going to call the question, if no one objects.
    (Amendment agreed to)
    The Vice-Chair (Mr. Francis Scarpaleggia): And it applies to BQ-4, BQ-6, BQ-8, BQ-10, BQ-12, and BQ-16.
    (Clause 21 as amended agreed to)
    (Clauses 22 to 25 inclusive agreed to)
    (On clause 26)
    The Vice-Chair (Mr. Francis Scarpaleggia): That brings us to clause 26. Those amendments have apparently been adopted, so are we in favour of clause 26 as amended?
    A voice: They didn't adopt them.
    The Vice-Chair (Mr. Francis Scarpaleggia): Sorry. So we're on clause 26 and NDP-3?
    No. Those have been defeated. So it's just clause 26.
    Those have been defeated? Okay.
    (Clause 26 agreed to)
    (On clause 27)
    The Vice-Chair (Mr. Francis Scarpaleggia): That brings us to clause 27 and amendment G-2.
    What page are the amendments on, please?
    A voice: Page 9.
    I have a question on clause 27.
    Go ahead, Ms. Duncan.
    I'm wondering why--
    Oh, I'm sorry. I would like the government to present and explain the amendment first, and then you can respond.
    Mr. Woodworth.
    The issue in this case goes back to the question of the full suite of orders that we're attempting to give the court. We've already dealt with one of them, I believe.
    In this particular case, what we're doing is allowing the court to order an offender to pay money to an educational institution for scholarships for students in studies related to the environment. Secondly, we are allowing the court to direct an offender to pay an amount to environmental or other groups to assist in their work in the community where an offence was committed.
    This provision is similar to one that already exists under CEPA. It was intended to be added to all of the acts that we're dealing with here today, but it was inadvertently missed. The purpose is to ensure that the court has authority to direct the offender to contribute to environmental and other related work in the community affected by the offence.
    Yes. I would like to suggest a subamendment to that amendment. I think it will allow for better delivery of the purpose and intent of your amendment. The way it reads right now, the court could direct payment to any group for any work and all they need to do is live in the community near the marine conservation area. I'm proposing an amendment to replace the words “work in a community” with “work related to the marine conservation area”. I'm making that proposal for two reasons. The way it reads right now, the money could be awarded to anybody who's doing anything whatever in the community. It also is extremely nonsensical in the case where, if you have marine conservative areas, in many cases there's absolutely no community anywhere near the site. So it would be appropriate to allow for the allocation to any group that is doing work related to the marine conservation area and its protection, which is probably far more likely the case.
    It's suggested as a friendly amendment to allow for what I think is the purpose and intent of what you're proposing here.


    Do you accept that as a friendly amendment?
    I'll just repeat. This would replace the words “work in the community near the marine conservation area” with “work related to the marine conservation area”.
     I'll accept that as a friendly amendment.
    Perhaps Mr. Woodworth can clarify. Can you tell us how this relates to amendment G-1, which has been delayed?
    It seems quite similar.
    Amendment G-1 was not quite as extensive in that I think it really only dealt with changing the phrase “environmental studies” to “studies related to the environment” to give it a broader scope, whereas this amendment adds an item that was entirely inadvertently overlooked.
    So what does that mean, Mr. Chairman? Does that mean that amendment G-1 is now withdrawn?
    No. Amendment G-1 is still required to broaden the phrase “environmental studies” to “studies related to the environment”, but in addition to that, we do require amendment G-2 to fill the gap of leaving out the ability of a court to order an amendment to a group to assist in the community where the offence was committed.
    May I ask, Mr. Chair, through you to the officials.... I do share some of Ms. Duncan's concern about the broadness of this. The officials gave us a single page on which the specific orders that are permissible under all acts amended by this bill are laid out. I have the page in front of me. Do you have the page?
    Yes, I do.
     I've gone through these, because we'd started this discussion at the last meeting and we were going to come back to this just to get a sense. They're very specific, and I'm just wondering, is there latitude here? Not to be facetious, but if under (q), for example, the person is directed to pay an amount to the community association near the marine conservation area for a hockey rink, would that be permissible as currently written?
    I could probably assist again in pointing out the chapeau, the introductory paragraph in each provision where these court order powers exist. I'll read the provision out of the Canadian Environmental Protection Act, but similar language exists in all the other statutes:
Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:
    Then there's the list of creative sentencing tools. Mr. Chair, a principle of sentencing is that the judiciary is attempting to fulfill the purposes of denunciation, deterrence, and environmental restoration related to that particular offence, so there is latitude within the language of those creative sentencing tools. However, there is a required connection between the specifics of that offence.
     Sorry, it was denunciation....
    It was deterrence, denunciation--
    It was deterrence. And a third...?
    --and environmental restoration.
    Okay. Does this adequately address those three principles?


    Mr. Chair, I'm sorry, which particular provision are you asking me about?
    I'm asking about amendment G-2.
    This particular creative sentencing tool would be one option the judiciary could look to, to assist in determining a sentence that, as a whole, would fulfill those requirements. It wouldn't always be applicable in every case, but it's again a discretionary tool available for the judiciary.
    What really concerns me, Mr. Chair, is that this can't be read in isolation. I'm looking at this and I'm reflecting on the fact that the government has changed the regulations with respect to environmental assessment. Right? There have been massive changes to environmental assessment. Anything under $10 million now is no longer subject to a federal environmental assessment unless it's inside a national park or inside marine conservation areas. That's the import of the changes they've made, which is something Canadians aren't aware of yet.
    Given the fact that there is no more environmental assessment for stimulus investment purposes, according to the government, and that EA has been done away with for projects under $10 million, I'm really concerned about the flexibility here and about what kind of order can be made. That's why I'm following up on Ms. Duncan's subamendment. I know it was a friendly amendment accepted by the government. But I want to make sure that this is locked down so that we don't see any further watering down of environmental standards and environmental assessment in and around marine conservation areas and communities. We've already seen a complete gutting of environmental assessments.
    Can you help me understand how these connect?
    As a point of order, I don't see anything in this that relates to environmental assessments whatsoever, I'm sorry to say. We're not talking about environmental assessments here.
    May I respond, Mr. Chair, to the point of order?
    Go ahead, Mr. McGuinty.
    If a judge is given the discretion to direct a $100,000 fine to a community association, the Canterbury Community Association, in my riding, which is near and abuts a marine conservation area, and if the community association uses that for the construction of an expanded community association hockey rink, and it's no longer subject to an environmental assessment, I think these two connect. Don't they?
     I don't see that. But quite frankly, to get this discussion moving, I'll withdraw my point of order. I just think it's a red herring.
    Are there further questions for the officials, Mr. McGuinty?
    Mr. Bigras, Ms. Duncan, and Mr. Woodworth want to address this issue.
    It's not to the officials, but I did not understand the import of Ms. Duncan's subamendment. Could someone read it out for us?
    Ms. Duncan, would you read out your friendly amendment that was accepted by Mr. Woodworth, I believe?
    Yes, certainly.
    It would read:
directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work related to the marine conservation area where the offence was committed.
    The intent, if I could explain, is....
    I think we know what your--
    Mr. McGuinty had said that he didn't understand the intent.
    The intent of my amendment is to make it clear that the court may award it to an environmental group or any group--because they might call themselves a scientific group and not an environmental group, which makes sense--but only to those groups that are actually engaged in work related to the marine conservation area. I don't think the--
    Yes, that would be even if they're not in the area itself.
    Exactly. In other words, it shouldn't be necessary that they live in that area. It also means that if they are not the environmental group, they must be engaged in work related to the marine conservation area.
    We'll go to Mr. Bigras.


    Regarding amendment G-2, I understand the spirit of the proposed paragraph 27(1)(q) and (r), but looking at paragraph (r) in particular, basically what the government wants is to allocate some funds to the education sector. This provision reads as follows:
directing the person to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in studies related to the environment;
    I'd like to move a friendly amendment. I propose the addition of the word “including” between “institution” and “for scholarships”. The spirit of the provision would not change, that is the money would be paid to an educational institution, most likely for the purpose of establishing scholarships. However, the option would remain of using the funds for another purpose.



     Mr. Woodworth, do you accept this as a friendly amendment?
    If I understand correctly, the amendment would be to add, after the words “educational institution”--at least in the English version--the words “among other things”.
    If that's what is proposed, then I do accept that as a friendly amendment.
    Okay. That's great.
    We can--
    That's not the translation, though, from what I understood. I'm not sure it was interpreted correctly.


    Is that the gist of your proposal?
    I'll repeat it. In French, the provision would read “[...] une somme d'argent notamment destinée à créer des bourses d'études [...]”. What would that be in English?


    I'm not the interpreter.
    I did not mean to say that there would not be a corresponding French language amendment as well. I only meant to speak to it in English, because that's what I understand.
    I understand Mr. Bigras' motion to be that there will also be an equivalent change to the French language version.


    Quite simply, Mr. Bigras, you want the word “notamment” to be inserted. Correct?
    It's not that complicated. I'm suggesting the word “notamment” be inserted between “d'argent” and “destinée”. How would “notamment” be translated?


    Perhaps “particularly to”, or “in particular to”.
    Can I make the recommendation to our committee that we vote on proposed new paragraphs 27(1)(q) and (r) separately? There was considerable debate on Tuesday about (r). It would be my preference that we deal with one and then the other, if that's acceptable to the government, in the hopes of not losing both.
    My intention was to move the whole government G-2 amendment, which is, I hope, what I have been recorded to do.
    I apologize for misapprehending the wording that Mr. Bigras was proposing. If it's “including” rather than “among other things”, I still accept that as a friendly amendment.
    I propose that we vote on this as a whole, although I do recognize that the issue we discussed in relation to G-1 also applies in relation to G-2.
    We're ready for the vote.
    So Mr. Bigras' subamendment was accepted?
    If I understood it correctly, that it adds the word “including” after the words “educational institutional”, then yes.
    And if I understand correctly, we're voting on G-2 in its entirety.
    As amended.
    (Amendment agreed to)
    (Clause 27 as amended agreed to)
    (On clause 28)
    The Vice-Chair (Mr. Francis Scarpaleggia): We now have amendment G-3.1, which is on page 10.1.
    Mr. Woodworth.
     I will move that. I assume I'm not required to read the entire amendment, but I will move the amendment as it appears before us as G-3.1 on page 10.1.
    I will speak in support of it to explain that what we are doing is adding a provision, which is now necessary because in Bill C-16 we have allowed the court to order an offender to compensate any person for the cost of remedial actions that are necessary as result of an offence, and also to pay an aggrieved person an amount by way of compensation or satisfaction for loss or damaged property, suffered by the person as a result of the offence.
    In other words, we've imposed a kind of liability on the offenders and, as was discussed somewhat extensively with the shipping industry witnesses, when there are liabilities of that nature that are governed by international conventions, we have the Marine Liability Act or the Arctic Waters Pollution Prevention Act to deal with those international conventions and to impose a specific code of liability on shippers to which those conventions apply.
    What we are doing here is to say, in effect, that when a judge or court would be considering an order imposing such liability, where the international convention is applied through the Marine Liability Act or the Arctic Waters Pollution Prevention Act, we will exempt the offender and let those regimes apply instead.
    In other words, we want to avoid any conflict between Bill C-16 and Canada's international obligations as enacted in the Marine Liability Act and the Arctic Waters Pollution Prevention Act.


    Ms. Duncan, and then Mr. McGuinty.
    I'm going to suggest a friendly amendment, but I'm going to suggest the amendment only after hearing from the government lawyers.
    I understand what you're doing, and having heard from the marine folk, I think it's really important that we clearly recognize the international regime and the other compensation funds.
    The part of the language that troubles me, and I'm open to being convinced that it's not an issue, is where it says that the other person “may make a claim”. Anybody can make a claim at any time, but that doesn't mean they are entitled to make a claim. I think it's incumbent upon the court to be assured by the crown that in fact the person to whom the court would have otherwise awarded damages is “entitled“ to make a claim.
    In other words, I'm presuming there are criteria under those regimes for who is entitled to seek damages and who isn't. I'm wondering if it might be more appropriate to say “is entitled to make a claim”, as opposed to “may make a claim”. I'm a bit worried that it's so wide open. Anybody can make a claim, but they might not have any hope of ever having damages paid.
    It worries me a bit. Perhaps I can be convinced that it's enough to give assurance, but it worries me, given what we heard from the witnesses two meetings ago.
    Are you waiting for an answer from the officials?
    Mr. Chairman, we have Gillian Grant here. She is legal counsel with the Department of Justice in Transport Canada and probably has the most expertise in relation to the Marine Liability Act. She may be able to help the member.
    Go ahead, Ms. Grant.
    The intent of the amendment here is to ensure that claims that can be made under the Marine Liability Act are excluded.
    I understand that.
     So your concern is that you feel that the word “may” is a little bit weak.
    Anybody can file anything all the time, but they might not have a hope in heck because they don't meet the criteria. I'm not sure that's requiring the officers of the court to give sufficient information to the court in order to make a proper determination on whether or not these persons may or may not make a valid claim. Simply anybody can apply. In other words, what it's saying is there are these other damage funds, but it's not putting that together with the person who suffered the damage. I'm just wondering if it might make more sense to say “is entitled to make a claim”. It doesn't say that they actually have to have their claim paid, but at least it says they're entitled to make a claim. I'm presuming that under those conventions there are criteria for who can make application to have damages compensated.
    I'm not trying to cause trouble. I'm just trying to make sure that the intent is covered by what the government is intending to do.


     I think there are certainly criteria in the Marine Liability Act and in the convention about who can claim. I think what you suggest is acceptable.
    Where does that leave us now?
    Having heard from the officials, I'll accept that as a friendly amendment.
    Ms. Duncan, could you repeat the friendly amendment for the clerk, please?
    The amendment would be to both proposed subsections (1) and (2). In place of the word “may”, we'll use “is entitled to” in both (1) and (2).
     Yes, Mr. McGuinty.
    Through you to Mr. Woodworth, Chair, he suggested—and I'm surprised, I'm not sure—when we heard the testimony from the international shipowners and from the Canadian Maritime Law Association, there was never an acknowledgment by any expert.... Sorry, there were points made that I think many of us were trying to help elucidate about the conflict between international treaty obligations and domestic law. At no time, if I recall the testimony and comments and questions, was there a consensus here that there was a conflict. Now in the submission of amendment G-3.1, I understand from Mr. Woodworth that this is to correct conflicts between treaty law implemented in Canada and domestic legislation. Is that right?
    There were two potential conflicts addressed by the witnesses. One had to do with the possible liability for a prison term by foreign vessels and the conflict with UNCLOS. In my view, that is resolved by the prosecutorial policy not to seek prison in such cases. The second potential conflict is in relation to this issue of liability for compensation. In my questioning of the witnesses, in fact, I asked at least one of them whether they would be satisfied if our act did provide exactly this exemption. I don't think the witnesses were aware of this amendment, so I brought to their attention the possibility of such a thing. I recall that the evidence was that it would satisfy them.
    I certainly never suggested that there wasn't a prima facie issue there. I was only suggesting to the witnesses that it could be resolved by exempting those cases where the Marine Liability Act applied from our compensation provisions in Bill C-16, and they seemed to say that that would solve their problem on that issue.
    Does that answer your question?
    Call the question.
     Let's call the question on amendment G-3.1 as amended.
    (Amendment agreed to)
    (Clause 28 as amended agreed to)
    (Clause 29 agreed to)
    (On clause 30)
    The Vice-Chair (Mr. Francis Scarpaleggia): Now we're at clause 30. We have BQ-4, but that's been adopted.
    (Clause 30 as amended agreed to)
    (Clauses 31 to 37 inclusive agreed to)
    (On clause 38)
    The Vice-Chair (Mr. Francis Scarpaleggia): Now we get to clause 38.


    We've already voted on all those, right?
    The amendment was defeated, so it's clause 38 as is.
    (Clause 38 agreed to)
    (On clause 39)
     We have amendment G-4 now, on page 15.
    I believe that duplicates amendment G-2, which has been carried.
    It does, but I wish to make the same friendly amendment.
    Could Mr. Woodworth maybe just explain what amendment G-4 is?
    Yes. Amendment G-4 is exactly the same as amendment G-2, apart from the fact, of course, that amendments G-4 and G-2 have been subject to friendly amendments. Since we passed amendment G-2 with that friendly amendment, I suggest that would apply to amendment G-4 and subsequent iterations of amendment G-2.
    Does that mean you withdraw amendment G-4?
    No, I think what I'm saying is that the vote on amendment G-2 should apply to amendment G-4 as well as amendments G-15 and G-17. I think amendment G-11 may be a little bit different, so I'm not going to include that.
     Excuse me, the clerk has a question.
    Could I get some clarification, please?
     The amendment to G-2 was to remove the words “in a community near” and replace them with “related to”, and in French, the addition of the word “notamment” after “d'argent” in the second paragraph. I don't have any difficulty with the word “notamment” in the second paragraph, but I'm not sure we can strictly just insert the words “related to”. Is it “in a community in or near”?
    I think the corresponding amendment would make it read “their work related to the park”. I do admit that rather than a marine conservation area, we're talking about a park.
    So we take out the words “in or near”.
    Can I make a friendly suggestion, even though we passed the amendment before? That is a problem because we're stuck with the word “marine”. It would be exactly the same wording. We could have made it consistent throughout, and I should have thought of that in foresight. We could have simply said the “marine park”, but in this case, it would say the same word. Just take out “marine”.
    In that case, it makes sense for all of the others, I think.
    Mr. Chair, I'll move this. It's G-4, in it's entirety, with that friendly amendment suggested to make it read “their work related to the park”, and also, with Mr. Bigras' friendly amendment in what appears as proposed paragraph 30.(1)(r) in G-4, to read “educational institution including for scholarships”. So I will move G-4 with those two friendly amendments.
    Mr. David McGuinty: Just a second. What is paragraph (r)?
    Proposed paragraph 30.(1)(r) is to add the word “including” after the words “educational institution”.
    So it's “an amount to an educational institution including for scholarships”.
    Thank you.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 39 as amended agreed to)
    (On clause 40)
    It's G-5.1
    In my view, it's G-3.1.


    They share an amendment.
    Yes, with the same amendments. If we can have the result in G-3.1 apply to G-5.1.... I'm just quickly scanning to see if it applies elsewhere.
    Is there a G-18.1? Yes, there is.
    If the result in G-3.1 could be applied in the same manner, with the same friendly amendments, to G-5.1 and G-18.1, that is my proposal.
    We're voting on G-5.1, as is, at the moment. Is that it?
    With the friendly amendments that were made to G-3.1.
    Could you tell us what those were, again, please?
    Yes. It is to replace the word “may” with the words “is entitled to” in both of the two paragraphs.
    Are there any issues with that?
    (Amendment agreed to [See Minutes of Proceedings])


    (Clause 40 as amended agreed to)
    Shall clauses 41, 42 and 43 carry?
    (Clauses 41 to 43 inclusive agreed to)
    We now come to clause 44. The Bloc Québécois would like to propose an amendment.
    You don't wish to propose an amendment? It's already been done. Another amendment applied.


    It was defeated.
    An hon. member: I don't think so.
    An hon. member: It carried.


    Shall clause 44 as amended carry?
    (Clause 44 as amended agreed to)
    Shall clauses 45 to 47 carry?
    (Clauses 45 to 47 inclusive agreed to)
    We now come to clause 48.
    (On clause 48)


     I believe that amendment was withdrawn.
     Yes, BQ-7 was withdrawn. We're now on G-6.
    There's government amendment G-6 for clause 48 as well.
    Yes, we're on to government amendment G-6 now. Is that correct?
    That's withdrawn. Well, it's not withdrawn; it has just failed.
    Clerk, does another amendment apply to G-6?
    No, so this is a brand-new amendment.
    Mr. Woodworth.
    Thank you.
    I will move before the committee the amendment set out in G-6, and I will speak in support of it by pointing out that these are additions to the Canada Wildlife Act that were inadvertently missed.
    Clause 43, which I believe we've already passed, has added authority for the minister to designate analysts. Analysts are officials with technical expertise who go along with the enforcement officers and perform functions such as taking samples, for example. They're the CSIs, I guess, of the environmental world.
    The additional text before us will ensure that documents signed by analysts are admissible as evidence of the statements contained in them without the analyst having to testify. For those who are familiar with the Criminal Code and breathalyzer provisions, this is similar to a breathalyzer technician or analyst's certificate being allowed to stand in court without the analyst having to testify.
    The provision also ensures that the party against whom the document is produced can require the attendance of the analyst. So it will be up to the accused; if they do want the analyst there, they can require the analyst.
    And no document is received in evidence unless the party producing it has given the party against whom it is produced reasonable notice. So the government will have to give notice to the accused that it's going to rely on the certificate of the analyst, which is the same as other similar provisions I'm familiar with in the Criminal Code.
    Then, if the accused wants the analyst to come and testify, the accused is permitted to do so.
    This is standard in legislation providing authority to designate analysts. For example, it already exists in the Antarctic Environmental Protection Act.


    Is there any discussion on this?
    Mr. McGuinty.
    I understood about half of that. It's too bad we didn't get advance notice of the rationale that's backstopping this.
    To the officials, then, or maybe to Mr. Woodworth.... Actually, I'd rather have the officials respond, because Mr. Woodworth doesn't—
    I can slow it down.
    No, it's more along the lines of....
    This has an impact on the law of evidence. Is that correct?
    It is an amendment that determines an evidentiary procedure, yes.
    So can I ask the officials, is this consistent with the Canada Evidence Act?
    Yes, it is consistent with the Canada Evidence Act. It is not contrary to the Canada Evidence Act, and it is quite a standard type of clause that exists in numerous federal statutes, Mr. Chair.
    So there was an omission in drafting. Is that right?
    A similar provision is included in Bill C-16 for some statutes, but there was an oversight regarding the Canada Wildlife Act, Mr. Chair.
    Thank you.
    Are there any more comments on G-6? Should we vote on it?
    (Amendment agreed to [See Minutes of Proceedings])
    Then we must go to NDP-7, I guess. No, those were all consequential.
    (Clause 48 as amended agreed to)
    (On clause 49)
    Now we go to clause 49 and G-7 on page 22 of the amendments.
    Would Mr. Woodworth like to speak to G-7?
    Yes, I will move G-7 as it appears, but with at least one friendly amendment proposed earlier by Mr. Bigras to proposed paragraph 49.1(16)(d.2), so that it would read in line 3, “an educational institution, including for scholarships for students”, etc.
    If I could just have a quick moment to look at proposed paragraph 49.1(16)(d.3), I can't see the same concern as Ms. Duncan had.
     There's a small change.
    For the moment at least, that's the way I'll move it.
    Do you have a friendly amendment, Ms. Duncan?
    Yes. In proposed new paragraph 49(1)(d.3), I would suggest adding the words “or for”. It would read:
directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for the community where the offence was committed;
    Again, for the same reason, the court may deem that there is a scientific institute or some organization that has been helping an isolated community in dealing with an impact. It still relates to the community, but the funds could go to somebody who is doing work in the community or for the community.
    It's being proposed as a friendly amendment, and frankly, if Ms. Duncan is insisting on it, I suppose I would reluctantly accede. But my concern is that we're engaged in an act where we're trying to get a degree of uniformity, and we're introducing little wrinkles that make things even less uniform.
    It makes it uniform. That's actually why I'm doing it, to make it uniform.
    If it's insisted on, I'll accept it as a friendly amendment.
    Shall we vote on G-7 as amended?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 49 as amended agreed to)
    (Clauses 50 to 52 inclusive agreed to)
    (On clause 53)
    That brings us to clause 53, with amendment NDP-9.1.
    Ms. Duncan, would you like to move this and speak to it?
    These changes come out of consultation with the legislative drafters, who reviewed other environmental statutes and advised that this wording was more current with how governments were drafting provisions to clarify the liability--or not--for officers involved in enforcement. That is precisely why that wording was selected. It is not my wording; it is wording drawn from other statutes. Particularly in Alberta, the Environmental Protection and Enhancement Act has added those specific words. My understanding is that that was done to make it very clear that the government intends to absolve their agents and officials and officers from liability, but only in very constrained situations, so it defines much more clearly the situations where they would be absolved of liability.
    Is there any discussion on this amendment?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 53 as amended agreed to)
    (Clauses 54 to 57 inclusive agreed to)
    (On clause 58)


    This brings us to clause 58 and amendment BQ-8. But that was from another amendment, I believe, from BQ-2, which was carried.
    (Clause 58 as amended agreed to)
    (On clause 59)
    On clause 59 we have amendment NDP-10, on page 27.
    Ms. Duncan, would you move your amendment and explain it?
    As I mentioned to the government yesterday, I am actually removing that. I've had the opportunity to talk to the justice lawyers, and they advised me that it is consistent. It wasn't really clear previously when we went through the bill, and I have been given a level of comfort that I don't need to propose that.
    (Clauses 59 to 65 inclusive agreed to)
    (On clause 66)
    The Vice-Chair (Mr. Francis Scarpaleggia): Now we go to clause 66, amendment NDP-11.
    That's the same. I'm withdrawing it.
    You're withdrawing it.
    (Clauses 66 and 67 agreed to)
    (On clause 68)
    We're now on clause 68 and amendment NDP-12.
    Go ahead, Ms. Duncan.
     We had some discussion yesterday with the government to try to resolve this. I think some of the problems are in the drafting that occurred between too many parties. There were too many cooks in the kitchen. We may be able to resolve this simply with a comma added. I need to find the revisions proposed by the government.
    The problem was in how they were to be read together, and there was some confusion about the balancing of the requirement to know administrative law and so forth and to know scientific knowledge versus aboriginal traditional knowledge. When we reviewed that, as I recall, Mr. Woodworth, did we not agree that perhaps simply adding a comma after “administrative law” might remedy that? As it reads right now, it remains confusing. I tried to come up, with the drafters, with an alternate version.
    To be clear, on the record, I am very flexible about this. It was my preference that the most important thing for a person who is going to be a review officer to have, frankly, is some kind of administrative or tribunal background, because the role of the review officer is to make sure there is due process and that rights are protected. My understanding is that the government is of the view that it's equally important that the review officer have some background in conservation and the environment. I'm open to being convinced of that.
    My bigger concern is that it is unclear, the way it reads, how you include.... For example, if you're wanting to appoint a first nations or Métis person, how do you give equal credence to their backgrounds? So I'm open to some revision that makes that clear or to being convinced that it's fine the way it is.
    I'm not trying to make it complicated. I was just troubled by the wording.
    Go ahead, Mr. Woodworth.
    Thank you.
    I'd just like to get some input from the officials about what Ms. Duncan and I discussed. For those who are following, in the bound Bill C-16, it's on page 82, section 247.
     In order to assuage Ms. Duncan's concern that the final phrase, “traditional aboriginal ecological knowledge”, stood as an independent disjunctive ground and did not simply relate back to the phrase, “administrative law”, I was proposing to Ms. Duncan that perhaps her concern would be satisfied if we simply amended section 247 to put a comma after the word “regulation”. That would make it clear that the “traditional aboriginal ecological knowledge” phrase was not modifying “administrative law” but was an independent disjunctive ground. If the officials are satisfied that this doesn't create any technical havoc with the clause, then that's what I would suggest we do.


    What is not clear, Mr. Chair, is what specific pieces of information, knowledge, or background the government is trying to convey here. The way it's worded, if you read it all together, I'm not sure it's delivering what the intent is.
    Could I have an answer to my question first, please, because maybe the answer to my question will answer Ms. Duncan's question?
    Could we have some direction here?
    Sorry, but you have a four-person meeting going on.
    Yes, I know. I apologize, Mr. McGuinty.
    Okay, step aside.
    Why don't you let the chair decide that, Mr. McGuinty. He's chairing the meeting.
    I apologize for this slight diversion.
    Mr. Woodworth, you're still speaking on this issue.
    I had asked whether adding a comma after the word “regulation” would cause any undue havoc to the section.
    Mr. Chairman, I'm sorry. I was having a little difficulty following, but I understand that we are back to the wording as proposed in the bill and that we are not studying the wording as proposed in the motion.
    That's correct.
    Adding a comma there, no, would not create any issue, I don't think.
    Mr. Chair, I have a second suggestion, which I am hopeful will resolve it. What if we added an “and” between “human health” and “administrative law”?
    I don't think I can accept....
    I'm not sure what the intent of the provision is. It needs help.
    I would not accept that. It would then make these things conjunctive, and even Ms. Duncan's amendment didn't do that. It made them disjunctive with the word “or”. So I'm going to stick with the compromise that a comma after the word “regulation” will make it clear that traditional aboriginal ecological knowledge is still a disjunctive qualification in the section.
     I'm moving an amendment to the government clause 68 to put a comma after the word “regulation”, and I'm hoping that will satisfy Ms. Duncan's concern.
    Would that work for you, Ms. Duncan?
    Mr. Chair, I need the government to explain to me what they are intending by this provision, because I am trying to follow what it says; it's not telling me clearly what things the person has to be and what things might be optional. I'm not understanding what the provision is telling me.
    Mr. Calkins, do you have a point to make?
    When anybody examines the realities of truth table, when you have “ands” or conjunctives, they must all be satisfied. When you have an “or”, only one side of the equation must be satisfied for something to be true.
    So my interpretation of this is that the conservation and protection of the Canadian environment must be satisfied; that the section that deals with environmental and human health must be satisfied; and either the administrative law as it relates to environmental regulation or traditional aboriginal ecological knowledge must be satisfied.
    I hope that points to some clarification for Ms. Duncan.
     I am not convinced that's what the provision says. That's my concern.
    Do the officials have anything to add to this that could help us?
    Mr. Chairman, certainly, I think it is accurate to say it is conjunctive in the phrase “environmental and human health”.
    Apart from that, there are four main rubrics and those are disjunctive from one another. The intention is to be able to pull people from that variety of backgrounds, the four types of areas, to create a roster and then be able to deal with cases as they come forward and have the appropriate expertise on the roster.


    That's exactly it. So what we want for review officers is for each one of them to be expert in at least one of the four areas.
    That's correct, Mr. Chairman.
    Okay. That was not what Mr. Calkins said, for example.
    I'm just trying to understand here where we're at.
    One of them must be satisfied.
    One of them must be satisfied, but it's not.... One of the last two and the first two automatically. It's that one of the four must be satisfied.
    Mr. Chair, it is possible then that you can have a review body of five. You could have five review officers, all of whom know about administrative law as it relates to environmental regulations, but none of the above. Or you could have five individuals appointed who know about traditional aboriginal ecological...right? That's the way it could be interpreted.
    Do you think that would lead to a lopsided result?
    Mr. Chairman, no, I don't think so.
    The intention is to be able to have a roster with the expertise needed, given the caseload the chief review officer is facing. So it would be implemented in keeping with what the needs are.
    But that's not the case the law provides.
    How do you explain the fact that this is not what it says?
    Mr. Chairman, the law is's enabling, so it allows for the provision to be.... My understanding is that human health is becoming increasingly an issue for the chief review officer, so it allows for a flexibility to have an increased number of review officers appointed under environmental and human health when necessary. But these things may change over time, and therefore it is enabling and has some flexibility built into it.
    Does that answer your question, Ms. Duncan?
     I think someone else wanted to speak.
    I don't think it satisfies.... I'm not going to pursue it. We can just vote, if you want, and vote it down. I'm not satisfied that--
    Mr. Trudeau, did you have something to add? No? Okay.
    I think the law should be clear, and it simply is not clear. Let's just proceed, and we can vote down the amendment.
    Mr. McGuinty, did you have a point to make?
    I'm hearing Madame Caron and I'm assuming that she can.... What did you call the position?
     The chief review officer.
    The chief review officer then can go out and hire any person based on any of these individual sets of criteria and capacity. Is that right?
    Go ahead.
    The roster created over time may have individuals with these various types of expertise, but all appointments are made by the Minister of the Environment under the Canadian Environmental Protection Act.
    Currently there is a chief review officer appointed and one additional review officer. It would depend on volume as to what number may be appointed in the future.
    Mr. Warawa, you had a point to make?
    Mr. Chair, the clock is approaching 11 o'clock. I would propose a 15-minute health break and then we reconvene at 11:15 a.m. and continue as long as necessary.
    It seems like we're on the verge. Is there consensus here that we're on the verge of adopting NDP-12? There's no consensus around NDP-12.
    I think NDP-12 was withdrawn on the basis that I have proposed a comma after the word “regulation”. The motion I've put before you is to add that comma to proposed section 247 in clause 68.
    That's what I understood Ms. Duncan's original comments to be.
    That's where we're at on adding a comma, really.
    I think so.
    No. I would prefer you just vote down my amendment, because I'm not satisfied with it.
    Just vote against my amendment. I'm fine with that.
    Unless you want to propose that amendment.
    I want to come back to Mr. Warawa's helpful comment in a second. First I wanted to ask Ms. Cosgrove something.
     I didn't ask how the appointment of review officers is made. The minister makes the appointment, fine. I want to ask, is the minister able to make review officer positions based on any of these elements of criteria of capacity? So the minister can say, I'm going to appoint that person specifically because they have TEC, traditional ecological knowledge, or I'm going to appoint them specifically because they have human health, they're a trained nurse, as opposed to a combination of these skills and a combination of this knowledge base. That's all I'm asking. Is that correct?


    This particular provision gives the discretion, Mr. Chair, to the minister to appoint an individual as a review officer if they can meet any one of these four areas. I would like to clarify, though, that environment and human health is a linked skill set in this list, and therefore that would be considered in terms of the type of human health expertise sought.
    I understand Ms. Duncan's amendment is about trying to see whether there should be a combination of these skills and abilities in substance. Is that right?
    The NDP-12 amendment, as I understand it, contains a list. The same criteria would apply; there's an “or”. So any one of the skill sets listed in Ms. Duncan's amendment would be sufficient in order to make an appointment.
    Thank you.
    Are we ready to call the question on NDP-12?
    (Amendment negatived)
    (Clauses 68 to 72 inclusive agreed to)
    Mr. Warawa, I believe you wanted to propose a health break for 15 minutes.
    Mr. Chair, I would move a 15-minute health break, followed by this meeting reconvening and going to 12 o'clock.
    I would suggest a five-minute break, if time is of the essence.
    Mr. Chair, I have to cancel a luncheon I'm hosting, and I have to cancel two meetings as well to get this done. So why don't we take ten minutes here and reconvene until at least 12 o'clock and see how far we've gotten.
    Thank you.




     I would ask members to come to the table.


    Let's move on.
    Next up is clause 73 and amendment NDP-13 on page 28.
    (On clause 73)
    The Vice-Chair (Mr. Francis Scarpaleggia): Please proceed, Ms. Duncan.


     I'm removing NDP-13 and NDP-14. I have spoken to the Justice lawyers and they have satisfied me that it is consistent with other statutes. We did not have that assurance before.


    We also have a government amendment, G-7.1.
    Could you explain this amendment to us, Mr. Woodworth?


    Sorry, have we voted on clause 73 as it was?
     I'm sorry. I will move amendment G-7.1 as it appears before us.
    This is to correct a minor drafting issue that was brought to our attention by the shipping industry people. We are replacing the word “and” between master and chief engineer with “or”, reinforcing that with the phrase “as the case may be”, and singularizing it to “is”.
    This will make it clear that we are not trying to impose liability on one for the other; we are simply saying that either one alone may be liable for this offence. It's strictly a technical drafting correction.


    Judging from our previous discussions, I think there is a consensus to adopt this amendment.
    (Clause 73 as amended agreed to)
    (Clauses 74, 75, 76 and 77 inclusive agreed to)


    The NDP has withdrawn amendment NDP-14.
    (Clauses 78, 79 and 80 inclusive agreed to)
    We now come to clause 81. There is an amendment on page 30.
    It has been withdrawn.
    The amendment on page 30 is withdrawn.
    (Clauses 81, 82, 83 and 84 inclusive agreed to)
    The government is proposing an amendment to clause 85. That would be amendment G-8.1 which can be found on page 31.1 Would you care to explain your amendment, Mr. Woodworth.
    (On clause 85)


    In this case there are two different government amendments--G-8 and G-8.1. If I am reading my notes correctly, they are not the same thing.
     I will speak first to G-8. It is similar to earlier government amendments, in that we wish to replace “environmental studies”, which might be interpreted too narrowly, with “studies related to the environment”. I think this is very similar to or the same as G-1.
     I'm not sure what we ended up doing with G-1, but the point of it is pretty clear and simple. I'll say no more about G-8, and I hope we can get some clarification as to whether we passed G-1 or not. I don't remember.
    We deferred G-1 to the end.
    In any event, it's the same issue as in G-8. It's simply to broaden “environmental studies” to “studies related to the environment”.
    Is there agreement on G-8?
    I wonder if Mr. Bigras' earlier comments also apply and if he's requesting a friendly amendment to insert “including” after “educational institution”. If he is, I accept it as a friendly amendment.


    Mr. Bigras, you would like the word “notamment” to be inserted. Is that right?
    Mr. Trudeau.


    I'm wondering, as we're addressing these, if we haven't bypassed the whole discussion we had around G-1, which was related to how broadly we wanted to look at studies related to the environment and whether we were willing to direct some of those funds towards intervenors. That was the hold-up and why we decided to follow up on the discussion around G-1. To just be passing G-8, which is the same as G-1, is, for me, not completing the discussion around G-1.
    I'm wondering if we're being consistent with what we said about holding this discussion to the end. Should we not put G-8 into that discussion around the end?
    But having said that, I realize that a few times already we've passed clauses very similar in terms of scholarships with the “notamment” addition, with the “including for scholarships” related to the environment. Have we just short-circuited or brushed aside our intention to discuss G-1 at the end of all this? I'm just wondering where we are with this whole discussion, not having gone through clause-by-clause issues before and not understanding all the implications.
    Would the officials have an opinion about this?
    Yes, Mr. Warawa.
    I'm curious if the request of Mr. Trudeau is for us, if we're going to be dealing with G-8, to also be dealing with G-1 and to deal with it now. We were going to defer it to the end. We could defer this to the end, or we could deal with both at the same time.
    What is the will of the committee?
    I'm ready for the question on G-8 and G-1 right now. I think we adequately discussed it when we dealt with G-2.


    Do you want to deal with both of them at the same time, right now?
    Yes. A few minutes ago, I moved an amendment to clause 17. Basically, we could deal with clause 17 at the same time. I have a [Editor's note: inaudible] of clause 17, which we deferred yesterday.
    Would someone like to speak to amendments G-8 or G-1?
    Ms. Duncan.


    Mr. Chair, I have no problem with calling the vote, but subject to also amending G-1 to add in the same amendment Mr. Bigras has asked for. Is that understood?


    Okay. So that's a friendly amendment. Shall we vote on G-1?
    Mr. McGuinty.
    I just want to make sure. This is tangentially related to intervenor funding, but it was much more related to the question of giving the court the flexibility to direct moneys to interns, to folks doing guild training, to folks doing apprenticeships.
    In the first reading, what concerned me was that it was restricted to scholarships for colleges and universities. I think if you look at educational institutions as defined by the tax code, certainly under the RESP regimes, it now includes things like hairdressing schools and trade schools. I'm trying to make sure that if the judge or court wants to direct some of these moneys to be used for these purposes, they have the flexibility to suggest putting them into a fund that's going to help train 10 more marine environmental inspectors. That's not in a college or university. That was the import of the concerns I raised the first time around, and I want to make sure that's caught.
    Correct me if I'm wrong, but by amending the amendment to say “including for scholarships”, are we not opening up the whole concept of educational institutions? No?
    I have Ms. Duncan and then Mr. Trudeau.
    I share the opposite concern of Mr. McGuinty. I prefer the fact that it's wide open. As I mentioned on Tuesday, I don't want to reduce it to universities and colleges.
    I think it should go to.... For example, in Alberta we have two technical institutes that do a lot of training and reclamation, and so forth. I see no problem with giving money to an organization that, for example, trains first nations in how to do water monitoring. In many cases those are small technical colleges and so forth.
    I like the fact that it's broad. I don't want to narrow it. Again, it's up to the enforcement officers to recommend to the prosecutor and then the prosecutor in turn to recommend to the judge. I prefer to leave it open.
    Mr. Trudeau, and then Mr. Bigras.
     I think Ms. Duncan and Mr. McGuinty are on the same page on that. Perhaps an amount to an “educational or training institution”, to modify “educational” so that it's not narrowly interpreted that “educational institution” is “universities and colleges” as opposed to....
    It's off the top of my head, but the intent of broadening our definition of “education” is to be “skills development and training” on issues related to the environment.


    I asked myself that question at the other meeting, and I did a bit of research to find out what constitutes an educational institution in Quebec.
    I think I can give you a definition, based on the summary of the Quebec Department of Education. Educational institutions may be public or private elementary schools, public or private secondary schools, public professional training centres, colleges, CEGEPs, universities and private special schools.
    So then, the definition is not restricted to CEGEPs and universities. It includes secondary and elementary schools. The scope of the definition is rather broad.
    Are we ready to vote on amendment G-1, as amended?
    Mr. Woodworth.


    I would like to make it clear that I did not accept Mr. Trudeau's suggestion as a friendly amendment. Although I appreciate the spirit of it, I think it would be unnecessary and would unduly “complexify” our bill, which is intended to bring uniformity.
    The clerk has a question.
    G-1, as it was submitted to the committee, deals only with the English language of the text. Am I to understand that the committee wishes also to amend the French version of paragraph (m) by including the word “notamment”—


    Yes, the word “notamment”...


    —as was done in the earlier amendments?
    Some hon. members: Yes.
    Mr. Wayne Cole: Okay, thank you.
    All those in favour of G-1 as amended?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 17 as amended agreed to)
    (On clause 85)


    Does that bring us to G-8?
    G-8 was a friendly amendment to include the word “including” or “notamment” in French. That was accepted as a friendly amendment.
    (Amendment agreed to [See Minutes of Proceedings])
     G-8.1 on page 31.1 is in the same category as G-3.1, I think. It is simply an attempt to deal with the issue of the Marine Liability Act and any inconsistency between this Bill C-16 and international conventions, but in relation to a different statute being amended.
    Do you accept my friendly amendment?
    With respect to G-8.1, I will accept a friendly amendment.
    I am moving it, but with a friendly amendment to replace the word “may” in both proposed subsections (1) and (2) with the words “is entitled to”.
    So now we're voting on G-8.1 as amended?
    I'm sorry, we have a little bit of confusion here. G-8 is an amendment to clause 85. G-8 has been adopted, so the committee should vote on clause 85.
    G-8.1 is the addition of a new clause 85.1. So we need to finish—
     Okay. We'll finish with clause 85 first.
    (Clause 85 as amended agreed to)
    The Vice-Chair (Mr. Francis Scarpaleggia): Now we move on to amendment G-8.1, which introduces a new clause.
    There was a friendly amendment, as mentioned previously.
    (Amendment agreed to [See Minutes of Proceedings])
    (On clause 86)
    We have three....
    Those are withdrawn? Those are done? Okay.
    Which ones?
    Amendments NDP-15, NDP-16, and NDP-16.1.
    They were defeated.
    (Clauses 86 to 92 inclusive agreed to)
    (On clause 93)
    The Vice-Chair (Mr. Francis Scarpaleggia): This brings us to G-9, right?
    Amendment BQ-2 was adopted.
    So we are at amendment G-9 on page 35.
    Amendment G-9 is a duplicate, I believe, of amendment G-6. So for the same reasons that I advanced in relation to G-6, I move G-9. It is a duplicate, in another of the acts, which Bill C-16 amends.
    Is there any discussion on amendment G-9?
    It's virtually a copy.
    (Amendment agreed to [See Minutes of Proceedings])
    (On clause 93)
     We're on amendment G-10.
    I move amendment G-10 as it appears before us. This is to correct a drafting error in clause 93, on page 116 of the act, line 30.
    There is a misdescription in proposed section 33. The “3(e); or” in line 30 should in fact read “3(f); or”.


    Is that CEPA?
    This would be, first of all, starting on page 116, clause 93 of Bill C-16.
    This is the International River Improvements Act, is that right?
    I think so...or CEPA, actually.
    Sorry, I'm not sure.
    It's the International River Improvements Act, yes.
    Thank you.
    In line 30 on page 116, proposed paragraph 33(1)(b) refers to “regulations made under paragraph 3(e)”. This is a drafting error. It should refer to “regulations made under paragraph 3(f)”.
    It's very technical. It's simply a drafting error. I wish to move this amendment to replace the “(e)” with an “(f)”.
    Unless anyone has an issue with the alphabet, I imagine we're all in agreement with amendment G-10.
    (Amendment agreed to)
    The Vice-Chair (Mr. Francis Scarpaleggia): That brings us to amendment G-11. Is that right?
    Yes, it's amendment G-11, page 40.
    I will move amendment G-11 as it appears before us.
    The amendment is very similar to what we have seen previously in dealing with the suite of powers that we wish to give to courts in dealing with environmental offences uniformly. However, in relation to the International Rivers Improvement Act, some were inadvertently omitted from clause 93 when the original drafting was done.
    Those three now appear before you, in amendment G-11. I think what's a little new, and what hasn't been discussed in the previous similar amendments, is new proposed paragraph 45(1)(p), which simply refers to research.
    I think the friendly amendment that's been proposed by Monsieur Bigras in relation to other similar amendments should also apply to amendment G-11 in new proposed paragraph 45(1)(q), to add the word “including” after the words “educational institution”.
     Is there a need for discussion on G-11?
     Before you put this to a vote, make sure we capture this.
    Was Mr. Woodworth suggesting there be a friendly amendment for proposed paragraph 45(1)(o)?
    No. I spoke earlier with Monsieur Bigras, and I think his concern is related to educational institutions, so that's in (q).
    I understand, but did we not make a series of earlier friendly amendments to paragraph (o) dealing with this question of working in communities, in places...?
    Thank you very much. That is correct.
    The amendment that was proposed by Ms. Duncan to replace what we see before us in paragraph (o) with the words.... I'm sorry, let me stop for a moment.
    Perhaps the clerk can assist us with that. Was there an amendment “to assist in their work in a community”? My memory fails me.
    Yes. I think we said that instead of “work in a community near”, it was “work related to the place”.


    All right. If the clerk confirms that's what we did in the previous amendment, we should do the same in paragraph (o) and I'll accept it as a friendly amendment.
     G-7 has to be amended differently because it's written differently from all the others. It could be simplified by simply saying, “to assist in their work in or with the community”. That covers the same thing.
     I think the previous wording was “in or for a community”. That captures what we did previously.
    Okay. The last part is slightly different, but I'm satisfied with adding “or for”.
     I would accept that as a friendly amendment to paragraph (o).
    Could we read it out?
    Mr. Woodworth, please read it out.
    New proposed paragraph 45.1(o) would then read:
directing the person to pay, in a manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for a community near the place where the offence was committed;
    New proposed paragraph 45.1(q) would read:
directing the person to pay, in a manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment;
    We will go to a vote.
    (Amendment agreed to)
    (Clause 93 as amended agreed to)
    (Clauses 94 to 96 inclusive agreed to)
    (Clause 97 as amended agreed to)
    (Clauses 98 to 101 inclusive agreed to)
    (On clause 102)
    The Vice-Chair (Mr. Francis Scarpaleggia): That brings us to clause 102 and amendment G-12.
    Mr. Woodworth, please enlighten us about G-12.
    I shall do so. This is on page 43. There was a minor drafting error in clause 102. It adds proposed subsection 13.13(2), which makes directors and officers of corporations who own vessels liable for the offences of the vessel if they “directed or influenced the corporation's policies or activities” .
    The intention of this is to make directors and officers of corporations who own vessels liable for the offences of the vessels if they direct or influence the corporation's policy in respect of the conduct that is the subject matter of the offence. In other words, any director or officer will influence the policies of the corporation, but that doesn't necessarily mean they should be liable for the conduct that makes up the offence.
    The section really needs to be tightened up to make it clear that the directors and officers are only liable in relation to the offence. This adds the words “in respect of conduct that is the subject matter of the offence” after “the corporation's policies or activities”. So directors will only be liable if they have influenced the policies or activities of the corporation in relation to the conduct that makes up the offence. If the directors have influenced the conduct or policies of the corporation in relation to tax law or other things unrelated to the offence—
     It's still reprehensible, but not relevant.
    Yes, reprehensible, but not relevant to environmental enforcement. Thank you.
    In effect, this is simply correcting a drafting error to make it crystal clear that it's their liability for the offence that we're trying to capture.
    Is there discussion?
    It's only the offence. That's the purport of this, right?
    It's the conduct that is the subject matter of the offence.
    Thank you.
    (Amendment agreed to)
    We're at G-13, Mr. Woodworth.
    In this case it is again a drafting error that relates to proposed section 13.15, which is added at page 145 of Bill C-16. I'm afraid I need to have that in front of me to really explain this one.


    What page?
     On page 145 you'll see proposed section 13.15. What we are attempting to do is just take into account new section numbers by indicating that in prosecuting a master or a chief for the offence of contravening a certain section, or knowingly contravening another section, or contravening another two, it's sufficient to establish that the offence was committed by a person on board the vessel.
    But what we were really trying to say is that for an offence under this act, other than those offences, because--
    An hon. member: [Inaudible--Editor]
    Mr. Stephen Woodworth: Well, those offences in effect already import the requirement of knowledge, so we're not trying to affect those, actually. We're trying to affect all other offences where knowledge is perhaps not imported, and in those cases we are trying to say it's sufficient that the offence was committed by a person on board, whether or not identified.
    So again, it's simply a drafting error in that the words “other than an offence of” were omitted. I know that's a bit difficult to follow, but that is the explanation.
    Are there any points of discussion?
    Mr. McGuinty.
    I need a minute.
    It's those where you have to show intent versus those where it's simply on strict liability, right?
    I understand this.
     Thank you.
    (Amendment agreed to [See Minutes of Proceedings])
    The Vice-Chair (Mr. Francis Scarpaleggia): We'll move to amendment G-14.
    Mr. Woodworth.
    Thank you.
    Again on page 145, we are dealing with proposed section 13.17. I don't know if I should call it a reverse image, but it reiterates in the Migratory Birds Convention Act what is currently provided for at proposed section 13.14 and explicitly provides for the defence of due diligence. It creates an exception from the due diligence offence for those offences that require proof of intent. So where mens rea is required, you don't need a due diligence defence.
     However, as it's currently drafted on page 145, at proposed section 13.17, the offence of knowingly falsifying documents is not explicitly excluded, which it should be as a mens rea offence. Again, it's a drafting error in which, after the reference to paragraph 5.2(a), (c), or (d), we should have included also “knowingly contravening paragraph 5.2(b) or contravening section 5.3”. In other words, paragraph 5.2(b) was inadvertently omitted, but it is a mens rea offence and therefore it needs to be excluded from proposed section 13.17, which is intended to provide a due diligence defence where there is no mens rea requirement.


    In this case, I'm not sure the additional words are necessary, but if it gives the government comfort that they're simply reiterating something that is already specified in those provisions, I'm okay with it. But I don't think it was really necessary here.
    I'm fine with it.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 102 as amended agreed to)
    (On clause 103)
    This motion adds authority for the court to direct an offender to pay an amount to environmental or other groups to assist in their work in the community where the offence was committed.
    First of all, I would accept the earlier friendly amendment that we discussed, in adding into this proposed paragraph 16.(1)(b.5), as we see it before us, in amendment G-15. After the words, “their work in”, add the words “or for”, so that it reads, “their work in or for a community near the place”.
    This provision already existed in the form we see it, without that amendment, at least under CEPA, and it should have been added to this statute as well but it was inadvertently omitted.
    With that friendly amendment, I would move G-15 as we see it before us.
    (Amendment agreed to [See Minutes of Proceedings])
    The Vice-Chair (Mr. Francis Scarpaleggia): We have G-16.
    Yes, G-16 is again similar to what we have seen previously, in that it deals with the suite of powers. We are attempting to widen the phrase “environmental studies” to read “studies related to the environment”.
    Again, I would accept the friendly amendment of Mr. Bigras in proposed paragraph 16.(1)(d.2), to add the word “including” after the words “educational institution”.
    Do you accept it in French as well, Mr. Woodworth?
    Oui, I do, Vice-Chair.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 103 as amended agreed to)
    (On clause 104)
    We have G-16.1, on page 49.1.
    I'll move that existing motion as we see it before us in G-16.1.
    The motion amends subsection 17.1(3) of the Migratory Birds Convention Act, for clarity.
    It's necessary, in light of the existing and proposed authority, for the court to order an offender to compensate a person. It's actually, I think, a duplication of what we have seen earlier in allowing the compensation scheme of Bill C-16 to be preempted by the compensation scheme and the Marine Liability Act or the Arctic Waters Pollution Prevention Act, in order to prevent any conflict with the international conventions that those acts seek to implement. I don't think there's anything—
    It would be a friendly amendment to that.
    There's nothing new to it, but I will accept G-16.1 and the friendly amendment to replace the word “may” in both proposed subsection 17.1(3) and proposed subsection 17.1(4) with the words “is entitled to”.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 104 as amended agreed to)
    (Clauses 105 to 108 inclusive agreed to)
    (Clause 109 as amended agreed to)
    (Clauses 110 to 113 inclusive agreed to)
    (On clause 114)
    Mr. Woodworth.


     This again deals with the suite of powers for the judge. I will move G-17 as we see it before us, including Mr. Bigras' friendly amendment, which adds to proposed paragraph 21.3(1)(r), after the words “educational institution”, the word “including”, with the same consequential amendment in the French version.
    I will also accept the friendly amendment by Ms. Duncan to the last line of proposed paragraph 21.3(1)(q), adding after “their work in”, the words “or for”, so that it would read, “their work in or for a community near the park”.
    That is not satisfactory to me. What is important is that there be the potential for giving an award to an environmental or other group that is doing work in or for the park, and not necessarily for a community that's near the park, because there may be no community near the park.
    In response to that point, I will withdraw my comment regarding “in or for”, because I think Ms. Duncan's suggestion is for an alternative version, which I would accept, which is, “for their work in a community relating to the park”.
    Remove “in a community”. So it would read, “their work related to the park”.
    I'm sorry. Thank you.
    It would read, “their work related to the park”.
    Thank you. That will be consistent, I hope, with earlier amendments.
    Read it again.
    Yes, if may, Mr. Chair, I will move proposed paragraph 21.3(1)(q) from amendment G-17, along with the friendly amendment discussed, so that it reads:
directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work related to the park.
    Along with that, I will move proposed paragraph 21.3(1)(r), with the friendly amendment, so that it reads:
directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment
    And the balance would remain as is, along with the consequential amendments en français.
    (Amendment agreed to)
    Now we go to G-18.
    Mr. Woodworth.
    Mr. Chair, I am not proposing to move G-18, but G-18.1—
    —which is the souped-up equivalent version of G-18.
    It's on page 55.1, I believe.
    Yes, it's page 55.1.
    Again, this is an amendment that will adjust the act to deal with concerns regarding international conventions and the Marine Liability Act. I am noticing that it doesn't refer to the Arctic Waters Pollution Prevention Act, which I suppose is because this act we're amending doesn't deal with Arctic waters.
    In all other respects it's the same, and I accept the friendly amendment by Ms. Duncan to proposed subsections 21.7(1) and (2) to replace the word “may” with the words “is entitled to”.
    Is G-18 formally withdrawn?
    Oh, yes, I shall formally withdraw that.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 114 as amended agreed to)
    (Clauses 115 and 116 agreed to)
    Just one moment. Do we not have G-19 to amend clause 116, or have we...?
    It's a new clause, I'm told.
    My apologies.
    You've lost me now.
    We're on page 56 and G-19, to add a clause...
    Didn't we carry clause 116?


    Thank you. My apologies.
    So we've dealt with clause 116?
    In that case, I move G-19 as it appears before us. This again relates to the evidentiary issue that we dealt with earlier. It simplifies the procedure for proof of an analyst's evidence, as mentioned earlier.
    I am at a loss to remember whether there were any friendly amendments suggested to it, but I think not, so I move it as is.
     Is there discussion?
    I don't remember. Were there?
    The clerk is saying no.
    Is there discussion on G-19? It doesn't look like it.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 117 agreed to)
    (Clause 118 as amended agreed to)
    (Clauses 119 to 121 inclusive agreed to)
    (On clause 122)
    The Vice-Chair (Mr. Francis Scarpaleggia): On amendment G-20 in regard to clause 122, Mr. Woodworth.
    Thank you.
    Again this relates to the suite of powers that have been previously discussed. I move G-20 as it appears before you, with the following friendly amendments.
    First, in new proposed paragraph 22.12(1)(f.2), by adding after the words “an educational institution” the word “including”, and in (f.3), replacing.... I think in (f.3), if I'm not mistaken, I'm safe to add as a friendly amendment, after the words “their work in”, the additional words “or for”.
    The clerk has a question.
    Could we ask the officials if the word “and” is necessary at the end of the amendment?
    No. The word “and” was inserted in error, Mr. Chairman.
    I would like to amend or modify my original motion to propose that the word “and” at the end of (f.3) not be included in the motion, that it be struck.
    I guess we're in agreement with that, that the word “and” be struck.
    Did you have a friendly amendment, Mr. Woodworth, in (f.1) and (f.2), or in (f.2) in particular?
    In (f.2) I have suggested a friendly amendment to add the word “including” after the words “an educational institution”.
    Right. Thank you.
    In (f.3) I have suggested a friendly amendment after the words “their work in” to add the words “or for”.
    I would like to speak to that amendment, Mr. Chair.
    Go ahead, Ms. Duncan.
    Given the nature of the act, and given the fact that in most cases the federal law is going to apply in places where there is no community anywhere near what they're regulating, I would like to recommend that it instead say “in their work related to wildlife protection”, and take out “in the community near the place where the offence was committed”.
    Or “just related to the place”.
    “Place” may not be relevant, given the act we're discussing, because it relates to the protection of wildlife.
    Mr. Chair, I worry that we've already done too much violence to the intention of trying to bring uniformity among the various acts and similarities, so I'm not favourably inclined to accept Ms. Duncan's suggestion as a friendly amendment.
    Okay. Mr. McGuinty.
    May I ask Mr. Woodworth what he proposes, then, to sharpen this up?
    I thought that “in or for” would be workable, but I suppose I might, if I heard Mr. Trudeau correctly, accede to his suggestion, which would be to make it read “to assist in their work related to the place where the offence was committed”.


    My concern is that this is an act that doesn't necessarily apply to offences related to a place, so perhaps the equivalent to the marine park, or park, or place that we've used before would be related to the particular type of wildlife, their habitat. The idea is to tie the results to the offence, and physical location worked for the other ones. We just have to tie it to something related to and find—
     I need a moment to get some direction.
    I guess we'll wait until the Conservatives come back.
    We need to look to the intent of this act, which is quite different from all the others.
    Mr. Woodworth, have we sorted out some language for G-20?


    It is my intention to be as amicable and conciliatory as possible in these committee hearings. I believe I can suggest what might be termed a friendly amendment. I'll read (f.3) as I propose it with the friendly amendment. It would read:
directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in relation to the protection of the species of animal or plant that was the subject of the offence;
     Do we have agreement on this language? Fantastic.
    Mr. Woodworth, if you could provide that wording to the clerk, it would make his life a lot easier.


    The meeting of the right and the left makes for a good marriage.
    Amendment G-20 as amended is agreed to.
    (Clause 122 as amended agreed to)
    (Clauses 123 to 128 inclusive agreed to)
    We have already adopted clause 17.
    Shall the short title carry?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Francis Scarpallegia): Shall the title carry?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Francis Scarpaleggia): Shall the bill as amended carry?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Francis Scarpallegia): Shall I report the bill as amended to the House?
    Some hon. members: Agreed.
    The Vice-Chair (Mr. Francis Scarpallegia): Shall the committee order the reprinting of the amended bill for the House's use during the report stage?
    Some hon. members: Agreed.


    Mr. Chair, I have a request to make in relation to reporting it to the House.
    The House has approved our trip to Alberta for our work on reviewing the impact of the tar sands on water. The government has asked that this bill be tabled during the day that we are in Calgary. I'm agreeing for it to go back to the House, subject to their being amenable to having the bill come forward on the Thursday that we are back instead.
    It makes sense.
    Is that acceptable to the committee members?
    It's not for the committee to decide. It's for the House. I'm sure there will be an accommodation somewhere.
    I'm suggesting it as a friendly recommendation.
    Does that mean someone from this committee would present the bill on the Thursday? I will not be here myself.
    The clerk tells me it's up to the House to decide when to deal with it. My understanding is that I could--
    You can still make a recommendation.
    Yes, I could, but it's not up to us. We can recommend, we can ask, we can cajole, but it will be up to the House.
    It's a reasonable recommendation, since the majority of the people who would potentially be interested in speaking to this bill--
    I'd love to be there too.
    I think Mr. Warawa agrees with bringing the recommendation to the House. We're all in agreement.
    Go ahead, Mr. McGuinty, please.
    I'm not sure if it's practice or not, Mr. Chair, but I'm wondering if we can send some sort of message of thanks. This act has been in the works now for about five years. An awful lot of officials across the federal government have worked on it in the justice department and in Environment Canada, and there are all the affected statutes, all the affected officials. It goes back some time now, and I'm not sure if a generalized expression of thanks or a collective thank you could be given to all the staff--hundreds, probably--who worked on this bill in the past 16 months or so.


    I think that's a good idea, and I would agree.
    Go ahead, Mr. Watson, please.
    Mr. Chair, I don't know if this is unabashed or not, but I just want to recognize the precision of Stephen Woodworth in terms of his contribution here at the committee.
    He's been outstanding.
    Mr. Woodworth did a great job, and thank you to all the officials who worked on this.
    There are a couple of things that--
    Could I have a point of order, sir?
    Yes, please go ahead, Ms. Duncan.
    In the blues from the last committee meeting, Mr. McGuinty says that the government has asked that there be a full costing of Bill C-311. I would like to ask if the government has finally tabled its letter with the committee and provided it as required, in French and English.
    Go ahead, Mr. Watson.
    I would like to speak to that.
    First of all, the government didn't seek it; government members sought it--
    You thought it was---
    There is a point of precision there.
    It has been twice sent to the clerk, I believe; I don't know whether it's been distributed.
    It has not been distributed, as far I know.
    That's a question for the clerk, not me.
    The clerk will be circulating that.
    I have a couple of items before we go.
    I imagine there's no objection to inviting the environment commissioner here on the 26th. We don't have time for a steering committee meeting between now and then, so we should decide this now.
    That's fine.
    We'll have the commissioner on the 26th--
    We have work planned. Where does the commissioner fit into the work plan?
    On May 26, I believe. It wasn't specifically mentioned.
    So then May 26 for the commissioner.
    Then we'll resume with SARA on May 28. I imagine there is no objection to inviting COSEWIC that day, May 28, because we can't do a steering committee meeting between now and then to sort out the witnesses. So why don't we invite COSEWIC for May 28, and then we'll work on the rest of the witness list when we get back, around May 25.
    What is on May 14?
    There is no meeting. We decided there wouldn't be a meeting.
    You may have decided, but you didn't confer with me. The last I heard we were all coming back to meet on May 14. This is news to me.
    We all agreed to that.
    Maybe behind the scenes, but nobody consulted me.
    We voted on it.
    That's complete news to me.
     I think there's consensus, Ms. Duncan, that we will not be meeting on May 14. I see there is perhaps an objection to that on the NDP's part.
    I'm not necessarily objecting. I'm just saying that as a courtesy it would be nice if I were informed.
    Would that be okay with you, Ms. Duncan, if we didn't meet on May 14?
    I'm concerned. It's three days where we could have dealt with Bill C-311.
    I was fully willing to come back from my own riding to deal with Bill C-311.
    We've noted that. As I understand it, there will not be a meeting on May 14.
    If there's no further business, is there a motion to adjourn?
    So moved.
    The meeting adjourned at 12:13 p.m.
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