Committee Transcripts: Standing Committee on Finance and Economic Affairs - 2000-Nov-02 - Bill 124, Toughest Environmental Penalties Act, 2000

Bill 124, Toughest Environmental Penalties Act, 2000
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TOUGHEST ENVIRONMENTAL PENALTIES ACT, 2000 / LOI DE 2000 SANCTIONNANT PAR.LES PEINES LES PLUS SÉVÈRES.DES INFRACTIONS.DE NATURE ENVIRONNEMENTALE

CONTENTS

Thursday 2 November 2000

Toughest Environmental Penalties Act, 2000, Bill 124, Mr Newman / Loi de 2000 sanctionnant par les peines les plus sévères des infractions de nature environnementale, projet de loi 124, M. Newman

STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS

Chair / Président
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)

Vice-Chair / Vice-Président

Mr Doug Galt (Northumberland PC)

Mr Ted Arnott (Waterloo-Wellington PC)
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr David Christopherson (Hamilton West / -Ouest ND)
Mr Doug Galt (Northumberland PC)
Mr Monte Kwinter (York Centre / -Centre L)
Mrs Tina R. Molinari (Thornhill PC)
Mr Gerry Phillips (Scarborough-Agincourt L)
Mr David Young (Willowdale PC)

Substitutions / Membres remplaçants

Mr Toby Barrett (Haldimand-Norfolk-Brant PC)
Mr James J. Bradley (St Catharines L)
Ms Marilyn Churley (Toronto-Danforth ND)
Mr Joseph Spina (Brampton Centre / -Centre PC)

Clerk / Greffière

Ms Susan Sourial

Staff / Personnel

Mr Doug Beecroft, legislative counsel

The committee met at 1600 in room 151.

TOUGHEST ENVIRONMENTAL PENALTIES ACT, 2000 / LOI DE 2000 SANCTIONNANT PAR.LES PEINES LES PLUS SÉVÈRES.DES INFRACTIONS.DE NATURE ENVIRONNEMENTALE

Consideration of Bill 124, An Act to amend the Environmental Protection Act, the Ontario Water Resources Act and the Pesticides Act in respect of penalties / Projet de loi 124, Loi modifiant la Loi sur la protection de l'environnement, la Loi sur les ressources en eau de l'Ontario et la Loi sur les pesticides en ce qui concerne des peines ayant trait à l'environnement.

The Chair (Mr Marcel Beaubien): Ladies and gentlemen, if I could get your attention, I would like to bring the standing committee on finance and economic affairs to order. This afternoon, we're here to consider Bill 124, the Toughest Environmental Penalties Act, 2000, and we meet for clause-by-clause consideration of the bill.

Before we begin, I would like to remind all members that by order of the House dated Tuesday, October 24, 2000, at 4:30 pm today those amendments which have not yet been moved are deemed to have been moved. I will interrupt the proceedings, regardless of where we are with the amendments, and at that time there shall be no further amendments or debate. I will put every question necessary to dispose of all remaining sections of the bill and any amendments thereto. Any divisions required shall be deferred until all remaining questions have been put and taken in succession. I will allow only one 20-minute waiting period, if requested, pursuant to standing order 124.

Before we begin the clause-by-clause, are there any comments, amendments or questions from the members?

Mr James J. Bradley (St Catharines): I have an amendment that was declared out of order.

The Chair: Yes. Mr Bradley, I'll give you the explanation. I declared it out of order for three reasons. One, it was received at 3:35. There was no contact prior to 3:30 with my office or the clerk's office. Secondly, the amendment itself was not in the proper form. Thirdly, I thought you, being a senior member of this House, should know the rules, orders and proceedings of the House. That's why I declared it out of order.

Mr Bradley: What did the amendment say anyway? I'd like you to share that with the committee so that we can know what it said because I think members would like-

Interjections.

The Chair: For the record, I'll read your proposed amendment to Bill 124: "That the name of the bill be changed to `An Act to amend the Environmental Protection Act, the Ontario Water Resources Act and the Pesticides Act in respect of penalties which will require a restoration of staff and resources in the Ministry of the Environment in order to be in force.'"

Mr Bradley: Thank you. I just wanted to know that.

Mr Toby Barrett (Haldimand-Norfolk-Brant): Mr Chair, just a comment on that. I know this is not being tabled, but Bill 124 does not require additional staff or resources to be in force. This legislation does not amend the ministry's enforcement framework. Even if it was tabled, there would be no need for that amendment.

Mr Bradley: I would disagree, but we'll leave it at that.

The Chair: Anyway, I will not entertain further debate on the amendment. I think I've given you your day at the table and it was ruled out of order. We'll proceed with the amendments that have been presented-

Mr Monte Kwinter (York Centre): On a point of order, Mr Chair: I listened to your explanation of the set of ground rules that we're operating under. I didn't hear a time as to when all of this was to happen.

The Chair: At 4:30.

Mr Kwinter: That's fine. I just wanted to make sure that was in fact the case.

The Chair: Ms Churley.

Ms Marilyn Churley (Toronto-Danforth): I have some amendments to make that were accepted. Should I proceed now?

The Chair: Sure.

Ms Churley: I have to read the whole thing, right, into the record?

The Chair: Yes.

Ms Churley: I move that subsection 1(1) of the bill, as set out in subsection 182.1(1) of the Environmental Protection Act, be struck out.

Should I give my explanation now as to why?

The Chair: Certainly.

Ms Churley: Just very briefly, because we have limited time here, I have made this amendment to all three parts of the bill, the Environmental Protection Act, the Ontario Water Resources Act and the Pesticides Act. As I mentioned in the House on several occasions when we were debating this bill and debating the closure motion on this bill, I see the bill as window dressing to obscure the government's failure to take real action to protect our environment. Although I have no objections whatsoever to increasing the penalties, I do have an objection to the fact that I see it as window dressing when in fact the government is not prosecuting now under the present laws and under the present penalties.

I'm making this particular amendment here to put back in all three of these acts-I guess I'll have to make the same motion for the other two acts as well-the clause that requires the provision allowing the ministry to fine corporate directors and officers who fail to prevent environmental crimes, not just the employees who carry out the deeds.

As you may recall, Mr Chair, this was with great fanfare brought to the House by the former environment minister Norman Sterling, and we in the opposition supported this clause. The regulations were never written to bring this into force, and now we find-although we weren't told; we discovered it when looking ourselves carefully through the bill-that this section had been removed. So on one hand the government is out there telling people, "Hey, we're bringing in the toughest penalties ever," but quietly, in my view by stealth, but we discovered it, a really important section in there has been taken out.

I can't see any reason why government members would object to putting this back in the bill. In my view, it would strengthen it. If you're going to be out there increasing penalties, for heaven's sake don't take away from a positive step forward by actually weakening the bill by taking this section out.

Mr Barrett: In contrast, we do feel that these three motions would weaken the bill, when you look at the larger picture. Allowing this motion and making an amendment like this would weaken the bill because it would give staff, for example, the discretion to issue administrative monetary penalties rather than prosecutions for what we consider these very serious offences.

This bill before us now, Bill 124, as we know, repeals the ability of administrative penalties to be issued for the directors and officers liability sections, and these special sections are considered to be very serious.

Therefore, in order to strengthen the enforcement ability of the officers and directors, liability offences should not be dealt with merely by administrative penalties but rather should be pursued through a prosecution. So repealing the ability to issue an administrative penalty to a director or officer who violates these sections ensures that these offences will be dealt with by using the most severe enforcement tool that we are making available in this legislation, namely, a prosecution.

The Chair: Any further discussion?

Mr Bradley: I came into this with an open mind because I've listened to both arguments made. I discussed this as well with the minister, who made the same case as the parliamentary assistant. Having discussed it with people who are in the legal business of dealing with environmental cases, it is my conclusion-and Linda McCaffrey, a former prosecutor for the Ministry of the Environment and with the Attorney General's office previously, wrote in this month's Municipal World-I'll do a very quick reading of it.

"In 1998, the government amended the Environmental Protection Act and the Ontario Water Resources Act to impose administrative penalties for less serious environmental offences. The rationale for such penalties was that prosecutions are too expensive and time consuming. The opposition lauded this legislative initiative and the bill passed quickly.

"Predictably, everybody forgot all about it. The ministry hasn't developed the regulations necessary to implement the legislation. Prosecutions are still too expensive, and administrative penalties are not a prospect."

I guess what this is saying is that-and your own member, Mr Saunderson, the former member for Eglinton, in his speech, with help from the government no doubt, said at the time that the reason you wanted to have this option was that sometimes you don't want to go through that court process, and if people in the ministry having to make choices had to go through the full court process every time, some relatively minor examples of breaking the law would not be prosecuted. He said, "You could compare this to the old parking ticket system, where some people never paid their parking tickets until apprehended."

He goes on to say:

"Now, under the new system, you cannot renew your licence if you have any parking fines outstanding. This is the type of legislation which is going to make sure these companies cannot go on and on abusing the system.

"I'm confident that the use of administrative monetary penalties will allow the ministry officials to respond to minor pollution offences in a timely fashion, but will not prevent the prosecution through the court system for more serious offences."

That option is open. I agree with the amendment. It makes sense for that reason. I don't want to see the directors of the company and the company president taken off the hook in terms of administrative penalties that could be applied where the ministry prosecutors deem that to be the appropriate course of action.

1610

The Chair: Any further discussion?

Mr Barrett: Just to clarify, I wouldn't want anyone to think that this bill repeals the ability for directors or officers to be subject to fines or jail terms. Rather, it repeals the ability for administrative penalties to be issued to a director or an officer of a company that violates the officers' and directors' liability sections in the three acts that you've referred to.

Ms Churley: I'm happy to vote on this now. We have a disagreement. I think Mr Bradley pointed out quite clearly why it's important to have this section there. I think it takes away from the strength of the bill by taking it out. I don't understand why you're doing it. We have a disagreement. I would like a recorded vote on that.

The Chair: Ms Churley has moved that subsection 1(1) of the bill be struck out. It's a recorded vote.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: That is defeated.

We go to page 2. Do you wish to read your amendment, Ms Churley?

Ms Churley: I will make an attempt.

I move that section 1 of the bill be amended by adding the following subsection:

"(7) Section 187 of the act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 37, is amended by adding the following subsection:

"Annual report

"(9) Not later than March 31 in each year, the minister shall publish a report entitled the `Offences Against the Environment Report' that provides the following information with respect to the previous year:

"1. The number of prosecutions commenced in the year in respect of offences under this act, the number of convictions obtained in the year in respect of offences under this act and the total amount of fines imposed in the year in respect of offences under this act.

"2. For each prosecution that was commenced or determined in the year in respect of an offence under this act,

"i. the identity of the defendant,

"ii. a description of the charge, and

"iii. if the prosecution was determined in the year, the result of the prosecution and the penalty, if any, that was imposed."

I am making this amendment because there was a time when this Offences Against the Environment Report was released. I know under our government this was a report that was released on an annual basis to the public. It gave the public an opportunity to see, as outlined in this amendment, exactly what offences had been committed, had been prosecuted, and what the level of fines was, so people could take a look and have an understanding of the sense of not only how well the environment ministry was doing in terms of enforcing and prosecuting, but also would be able to look from year to year and see which companies were repeat offenders, and have an opportunity to see across the province who the good players were and who the bad players were.

That is no longer happening. This government stopped releasing that report. I think this is a perfect bill to pass such an amendment. I believe that nobody would have any objection to having this amendment pass so that that information could be available to the public.

The Chair: Further discussion?

Mr Bradley: Very briefly, Mr Chair. It makes all kinds of sense to have this information available from a variety of points of view. We would want the Environmental Commissioner to have easy access to this information, we would want the Provincial Auditor to have it, but, as importantly, we would want all members of the Legislature to have that information available so we could all determine how well the legislation is working. If we do not have that information, we're unable to easily determine whether the legislation is working or not and whether further amendments to the acts that are involved in this legislation would be necessary.

Ultimately, the public should have this information available so they can make that judgment. It may be that the government, looking at it, is satisfied with the level of action within the courts or even outside the courts in terms of prosecutions, or it may be that the government itself is not satisfied, but certainly the public should have this information available.

I think as well, one of the things the ministry has said it wants to do is provide a deterrent out there for people. They want to discourage people from deciding to break the law in the first place. Knowing this information would be made available each year I think would go a long way to helping the ministry in terms of providing that deterrent. For that reason, I will be supporting the amendment.

Mr Barrett: With respect to these three motions, which would require the ministry to publish an annual report to explain those several information categories that you've outlined in your amendment, what we want to make clear is that this is not needed. Legislative amendments are not required in order to have a minister prepare annual prosecution reports. Prosecutions are conducted in open court and the public has access to this information. For example, the public has access to the names of defendants, a description of the charges laid, the outcome of the prosecution and any fine or jail term levies as a result of that prosecution. I want to draw your attention to the fact that currently the ministry provides press releases and Web site postings with respect to significant prosecutions.

Ms Churley: I don't find that response acceptable. Of course there is all kinds of information people can gather piece by piece, painstakingly, having to go to different sources-press releases here, press releases there-and having to look through court documents and files. I think it's the responsibility of the government and the ministry to make sure that that information is made available in one report so that people have easy and quick access to it.

There's a precedent for it. It's not new. It has already been done by the NDP government. I don't know if the Liberals before us did it or not, but I know we did. It was a useful tool, as Mr Bradley said, for the ministry, for the public, for everybody who is interested in this.

I would expect the minister, who is making noises about wanting to be more responsible environmentally-and that's what this bill before us is all about. He's at least making the case that he's increasing the penalties, the toughest in the universe, in the galaxy, as far as I can tell from what he's saying, but he's not doing some of the other things to back up that statement.

People have a right to know about prosecutions that are actually happening. It's been done before, and it was quite a popular report. I don't understand the objection to this one at all.

The Chair: I shall put the question on Ms Churley's amendment to subsection 1(7). Do you want a recorded vote?

Ms Churley: Yes, please.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is defeated.

Mr Bradley: Would you record that Ted's hand was shaking when it went up.

The Chair: Shall section 1 of the bill carry? All those in favour? Those opposed? Section 1 carries.

Section 2. Ms Churley, your amendment on page 3 that is listed in front of you.

1620

Ms Churley: As I mentioned earlier, this bill amends three different acts. I believe I'm on the second one now: An Act to amend the Ontario Water Resources Act, and the motion is the same as the last one. I want to achieve the same purpose in each of these three bills.

I move that subsection 2(3) of the bill be struck out. It's the same issue as before. I believe the government should still have the opportunity to give administrative penalties to CEOs of companies as well as the workers.

Again, because of time constraints, I won't repeat what I said before, but I feel just as strongly about it. I would hope that the government members, especially Mr Arnott, would support me this time. I know he knows I'm right.

The Chair: Any further discussion?

Mr Barrett: Again, I think everyone realizes we're now looking at the Ontario Water Resources Act section with respect to administrative penalties. As you've indicated, we already have discussed this and this is similar-it really relates to the Environmental Protection Act, subsection 1(1), that we had discussed previously. Again, just to clarify, this bill before us does repeal the ability for administrative penalties to be issued to directors or officers liability sections.

Mr Bradley: I should point out that particular provision from the 1998 legislation was never put into effect. There were never regulations promulgated. So there have been no charges and no fines levied under that provision.

Again, I would simply say I had a very open mind to this, to the argument that the member made and that others have made. Virtually everybody I've talked to in the environmental field-two I can think of who were environmental prosecutors with the Ministry of the Environment at one time-say that this is a weakening of the legislation rather than a strengthening of it.

On that basis, I'll be voting for the amendment again.

The Chair: Any further discussion? If not, I shall put the question on Ms Churley's amendment that subsection 2(3) of the bill be struck out.

Ms Churley: Recorded vote.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is defeated.

Ms Churley, if you wish to proceed with the next amendment.

Ms Churley: I move that section 2 of the bill be amended by adding the following subsection:

"(8) Section 109 of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 72, is amended by adding the following subsection:

"Annual report

"(6) Not later than March 31 in each year the minister shall publish, as part of the report published under subsection 187(9) of the Environmental Protection Act, a report that provides the following information with respect to the previous year:

"1. The number of prosecutions commenced in the year in respect of offences under this act, the number of convictions obtained in the year in respect of offences under this act and the total amount of fines imposed in the year in respect of offences under this act.

"2. For each prosecution that was commenced or determined in the year in respect of an offence under this Act,

"i. the identity of the defendant,

"ii. a description of the charge, and

"iii. if the prosecution was determined in the year, the result of the prosecution and the penalty, if any, that was imposed."

I make the same argument again as I made the last time and I perhaps will make it more strongly. I would appeal to my colleagues on the Tory side who have the majority there. This is a reasonable request, and I believe that if you don't at least support this, your argument that you're actually trying to strengthen laws is quashed. This is giving the public information about what you're actually doing out there on an annual basis.

Right now we know prosecutions and fines are way down under your government with existing levels. If you're really serious and committed to this bill, which obviously is going to pass today because you have the majority, then why would you object to having written right into the law that there has to be a report every year telling the people all the great things you plan to do, the convictions and prosecutions you plan under this act? It would only make sense. It's logical.

Mr Bradley: In support of the amendment, I would say that I think people believe it is difficult to get information easily from government. This would make it easier for people to have access to that information to make their judgments, either to put pressure on governments, whoever they happen to be, to amend their legislation to be more effective or to applaud governments for making it effective. I think that is a goal we could reach with this amendment.

Second, I mentioned before that governments in general these days don't want the public to know what is going on, as much as possible, if it could possibly be embarrassing. Sometimes it isn't. But what you do is you simply protect polluting companies. Not only does the public not like that, but I'll tell you who else doesn't like it: good companies. Most of the companies out there are very good companies. They don't break the law. They want to see you put the finger on those companies which do and they don't want to see those companies which break the law making a greater profit as a result. On that basis I think it's a very sensible amendment and I certainly support it.

Mr Barrett: Again, we do object to this amendment. Prosecutions are conducted in open court and the public does have access to information; for example, the names of defendants and descriptions of charges laid and the outcome of the prosecution and the nature of any fines or jail terms.

Just following up on Mr Bradley's comment, the information will get out, and certainly it is becoming very clear that only companies that defy the law or engage in practices that are damaging to public health and the environment or cut operating or maintenance costs that result in an expense or damage to the environment need worry about these tougher penalties. Just to reassure Mr Bradley, this bill will level the playing field. Those who flout environmental laws will not benefit at the expense of good corporate citizens which do comply with environmental laws.

Ms Churley: I think we're almost on a 4:30 deadline here, so I don't know if we're going to get to my other amendments.

I submit to you, in response to what you said, Mr Barrett, that it's just the opposite. As I said earlier, under your government-and it's documented, we pulled the pieces together-there have been fewer prosecutions and fewer fines than under the NDP government. That is with the existing penalties as they are now.

I submit to you that the reason why you don't want to support putting this in the legislation is that you don't want, as a government, the embarrassment of having to put out every year a document that shows how few fines and prosecutions you're actually conducting under this bill, that you're going to try to sweep it under the rug. We disagree on that, but given the environmental record of your government to date, the idea is to have this on paper, toughest penalties in the world, but not actually prosecute. I think that's a shame. If you really meant this you would put your money where your mouth is and allow this to go into the act so that this report would be an annual report for all eyes to see.

The Chair: I shall put the question on Ms Churley's amendment to subsection 2(8) of the bill.

Ms Churley: Recorded, please.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is defeated.

Shall section 2 of the bill carry? All those in favour?

Those opposed? That carries.

It being 4:30, pursuant to the orders of the day, at 4:30 on the final day designated by the committee for clause-by-clause consideration of the bill, those amendments which have not been moved shall be deemed to have been moved and the Chair of the committee shall interrupt the proceedings and shall, without further debate or amendment, put every question necessary to dispose of all remaining sections of the bill and any amendments thereto. Any division required shall be deferred until all remaining questions have been put and taken in succession with one 20-minute waiting period allowed, pursuant to standing order 127(a).

So we shall proceed to section 3 on page 5 of the material in front of you.

Ms Churley has moved that subsection 3(1) of the bill be struck out. All those in favour of Ms Churley's amendment to subsection 3(1)?

Ms Churley: Recorded vote.

The Chair: If you want it recorded, we'll do the recorded vote after. It will be deferred until the end.

Ms Churley: OK. I want it recorded.

The Chair: Then we shall proceed to page 6.

Ms Churley has moved that section 3 of the bill be amended by adding the following subsection-it's on page 6 in front of you. It's recorded, so we'll defer it.

We'll proceed to page 7 in front of you dealing with section 4.

Ms Churley has moved that section 4 of the bill be amended by striking out subsections 1(1)-I don't think I have to read it; it's in front of you. You've called for a recorded vote on this.

We'll proceed to section 5 of the bill, which is the short title of the bill.

Shall section 5 of the bill carry? All those in favour? Those opposed? That's carried.

We'll now proceed to section 3 on the recorded vote that Ms Churley has requested on subsection 3(1).

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is lost.

We'll proceed to subsection 3(7), Ms Churley's amendment.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is lost.

Shall section 3 of the bill carry? All those in favour? Those opposed? Section 3 carries.

Section 4 has a recorded vote.

Ms Churley: It's moot now. We can vote on it, but since the others failed, this no longer is relevant. It's moot. It depends on the passage of the others.

The Chair: We still have to deal with section 4. You requested a recorded vote.

Ms Churley: Right. My actual amendment is moot by the failure of the others.

The Chair: That's right.

Ms Churley has moved an amendment to section 4 on page 7 in front of you.

AYES

Bradley, Churley, Kwinter.

NAYS

Arnott, Barrett, Galt, Molinari.

The Chair: The amendment is lost.

Shall section 4 of the bill carry? Those in favour? Those opposed? That carries.

Shall the long title of the bill carry? Carried.

Shall Bill 124 carry? Carried.

Shall I report the bill to the House? Agreed.

This committee is now adjourned. Thank you.

The committee adjourned at 1634.

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