Court Information

Ontario Court of Justice

Date: 2019-12-19

Between: Her Majesty the Queen — and — Volkswagen Aktiengesellschaft

Before: Justice Rondinelli

Heard: December 13, 2019

Ruling Released: December 19, 2019

Counsel

T. Lemon and B. Gluckman — counsel for the Public Prosecution Service of Canada

D. Humphrey and S. Weinstein — counsel for the Defendant

A. Attaran and S. Tan — counsel for the Applicants

Decision

Rondinelli J.:

[1] On December 13, 2019, Volkswagen AG was arraigned on a 60-count Information alleging various violations of the Canadian Environmental Protection Act. It was anticipated that Volkswagen AG would be pleading guilty to all charges contained in the Information. However, before a plea was entered, an Application was brought on behalf of Tim Gray, Muhammad Malas, and Elaine MacDonald seeking "to present the Court with impact statements, and to draw the Court's attention to other victims, including thousands represented in class proceedings." Tim Gray and Muhammad Malas are environmentalists in Toronto. Elaine MacDonald is a former owner of a Volkswagen 2010 diesel Golf wagon that was imported into Canada.

[2] When the application is boiled down to its essence, what the Applicants are really seeking is to become parties to this prosecution. This is evident through their pleadings which state, "Along with victim impact, the Applicants seek to make submissions regarding restitution, fines, VWAG's non-compliance with section 157(1)(b) of the Canadian Environmental Protection Act, and the weight to be given to the fact that the accused pled guilty to fraud-related charges in the United States."

[3] The question is whether the Applicants have standing to participate in such a manner. The plain answer is no. The Public Prosecution Service of Canada has carriage of this prosecution. As noted in the 2018-2019 Public Prosecution Service of Canada Annual Report:

The PPSC provides prosecution services related to legislation protecting the environment and the safety, health, economic security, and general welfare of the public. In addition to fines and sentences of imprisonment, these cases can result in the imposition of measures designed to enhance public health and safety, improve the management and protection of environmental resources, or discourage financial and economic malfeasance.

[4] In short, the Public Prosecution Service of Canada speaks on behalf of the public: See R. v. United States of America at paras. 19-21. I also note that there are no named individual complainants in the Information before the court.

[5] No doubt there was a time when early societies functioned without centralized systems of criminal justice. Victims resolved criminal disputes themselves. As Justice LeBel observed in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 152:

[152] At a time when the King's writ did not always run throughout the realm, losses or harm to a person or property were made good by punishment or alternative measures, which were usually payment or compensation. For example, in early Anglo-Saxon England, the law knew very few strictly capital crimes. In most cases, two sets of punishment were available. On the one hand, the law allowed for a system of revenge. The victim, when possible, or the kin, would exact retribution on something like an "eye for an eye" principle. On the other hand, it was often seen as undesirable to permit blood feuds to go on endlessly. Thus there emerged a system of compensation by which crimes could be atoned for, by paying a victim or the victim's kin some sum, dependent upon the type of act committed and the class or status of the victim. These sums were even codified and often known as wergeld or blood money…During the Middle Ages, a clear distinction was drawn between pleas of the Crown which gave rise to a criminal law action and common pleas which were actions for damages. The merger of criminal law and the law of civil responsibility thus came to an end…One branch of the law aimed at punishment and preservation of the public; the other sought to make good losses suffered by the victim of some specific tort.

[6] With the differentiation between criminal law and civil law, it became generally regarded as undesirable to have alleged victims of crimes be heard as parties in criminal proceedings. Nevertheless, crime victims have garnered renewed attention over the last quarter of a century. The victim impact statement provisions of the Criminal Code and the enactment of the Canadian Victims Bill of Rights are testament to that.

[7] It is important to note that while there is no express statutory authorization permitting the use of victim impact statements in prosecutions under the Canadian Environmental Protection Act, neither the Public Prosecution Service of Canada nor the Defendant is opposed to allowing the Court to consider victim impact statements that are prepared in a form prescribed by the Criminal Code and contain statements directed to address relevant issues.

[8] It is also important to note that this prosecution of Volkswagen AG does not encompass the entirety of litigation relating to this emission scandal. For example, the Supreme Court of Canada recently allowed a class action against Volkswagen to proceed in Quebec: See Volkswagen Group Canada Inc. v. Association québécoise de lutte contre la pollution atmosphérique, 2019 SCC 53. Such public interest litigation allows private citizens to bring environment-based claims. Thus, having their day in court.

[9] In the end, there is no foundation, in statute or common law, for this court to depart from the general view that victims do not have an automatic right to participate in all criminal proceedings. The Applicants have failed to persuade me that there is anything especially unique about this case whereby the Public Prosecution Service of Canada cannot advance the sentencing principles and factors that this Court should consider for offences under the Canadian Environmental Protection Act without the Applicants being made a qua-party to the proceedings.

[10] The Application is dismissed.

Released: December 19, 2019

Signed: Justice Rondinelli