Bill C-16 (Historical)

Environmental Enforcement Act

An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment

This enactment amends certain enforcement, offence, penalty and sentencing provisions of the following Acts:
(a) the Antarctic Environmental Protection Act;
(b) the Canada National Marine Conservation Areas Act;
(c) the Canada National Parks Act;
(d) the Canada Wildlife Act;
(e) the Canadian Environmental Protection Act, 1999;
(f) the International River Improvements Act;
(g) the Migratory Birds Convention Act, 1994;
(h) the Saguenay-St. Lawrence Marine Park Act; and
(i) the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
It adds enforcement officer immunity to the Acts that did not expressly provide any. It also adds the power to designate analysts for the purposes of the Canada Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. It also adds inspection and search and seizure powers to the International River Improvements Act.
It amends the penalty provisions of the Acts by establishing distinct ranges of fines for different offences, by creating minimum fines for the most serious offences, by increasing maximum fines, by specifying ranges of fines for individuals, other persons, small revenue corporations and ships of different sizes and by doubling the fine amounts for second and subsequent offenders.
It amends the Acts to make the liability and duty provisions of directors, officers, agents and mandataries of corporations, and those of ship masters, chief engineers, owners and operators, consistent between the Acts.
The enactment amends the sentencing provisions of the Acts by adding a purpose clause, by specifying aggravating factors that, if associated with an offence, must contribute to higher fines, by requiring courts to add profits gained or benefits realized from the commission of an offence to fine amounts, by requiring courts to order corporate offenders to disclose details of convictions to their shareholders and by expanding the power of the courts to make additional orders having regard to the nature of the offence and the circumstances surrounding its commission.
The enactment adds to each of the Acts a requirement that details of convictions of corporations be made available to the public and that all fines collected be credited to the Environmental Damages Fund and be available for environmental projects or the administration of that Fund.
This enactment also creates the Environmental Violations Administrative Monetary Penalties Act which establishes an administrative monetary penalty scheme applicable to the Acts listed above as well as to the Canada Water Act.

[Renée Caron]

Thank you, Mr. Chairman.

I do apologize to the members of the committee, as I was expecting questions and didn't prepare a presentation, but I do have some other points.

Regarding the question of the shipping industry's economic viability and how Bill C-16 might affect that, we understand this issue in relation to two principal concerns that were raised. One was the issue of there being strict liability plus high fines—because maximum fines have increased under the bill. The other is that of strict liability plus imprisonment. My understanding was that those issues were raised by two different witnesses who appeared before you on Thursday, but who didn't necessarily share the same view. But those are the two main issues.

I'd like to point out to the committee that no other industry has raised similar concerns with Environment Canada, although these other industries are also subject to strict liability plus imprisonment, and strict liability plus the fine amounts, as identified in the bill.

Regarding the issue of strict liability plus imprisonment, the Department of Justice can speak more to the legal fine points. Nonetheless, this is actually a long-standing reality under the Canada Shipping Act and the MBCA, and even before the due diligence defence was legislated in statute, it was available as common law. So all the MBCA did was codify that due diligence defence.

Also, regarding the issue of strict liability plus imprisonment, the point of aggravating factors was raised on Thursday. I want the committee members to be sure to understand that aggravating factors do not come into play in the determination of whether imprisonment should be part of the sentence; they only relate to the issue of fines.

Regarding the point about strict liability plus the high fines, the committee heard several times of $6 million as a maximum fine under the bill for a first offence, and $12 million as a maximum for repeat offenders. I'd like the committee members to be aware that the regime for fines is a tiered regime and there are many gradations within that regime as to how much of a fine might be imposed. The regime is tiered along the lines of the type of offender as well as the lines of the seriousness of the offence. For individuals, including an individual seafarer, there was actually no change in the maximum fine for a serious offence; and because we created the new category of less serious offences, the maximum there is lower than what it would have been in the legislation previously. In addition, all of the fines are even lower if the prosecutor pursues by summary conviction rather than indictment. So this is another way the fines can be tailored to the seriousness of the offence.

For large corporations and large vessels, the $6 million for a first offence is the maximum and the $12 million is for a repeat offence. And those are for the most serious offences. For less serious offences, the maximums are $500,000 for a first offence and $1 million for a repeat offence.

Finally, there is a third type of offender in terms of their financial capacity, and this one is in between the individual and the large corporation or large vessel. This third one is the small revenue corporation or smaller vessel. For them the maximum fines are lower than what they are for the large corporations and large vessels.

Regarding the $6 million and $12 million, or the maximum fines, we expect that they will rarely be imposed in practice. Also, regarding the maximum amounts, as was indicated in previous testimony by Environment Canada, those amounts were borrowed from the Ontario legislation after a review of the maximums across Canada. In relation to this point, I would say that while the acknowledged purpose of the bill, in part, is to increase penalties, the ultimate aim is to protect the environment, not to put more people in prison or to collect more fines.

I'd like to move on to the Marine Liability Act. The Migratory Birds Convention Act currently allows for a vessel to be charged with an offence if it disposes of some material or some pollutant in water, harming migratory birds. That could be an oil spill or some other type of pollution damage. The bill doesn't change that. The current MBCA also allows the court to order an offender to pay compensation for remedial work the government might do that flows from the offence that occurred.

The existing MBCA clearly preserves the limitation of liability regime, which is set out in the Marine Liability Act in subsection 17.1(3). So in the case of an oil spill, provided it wasn't intentional or reckless, the Marine Liability Act establishes the regime limiting liability, and essentially, in my layperson's understanding of it, it's an international insurance scheme. The MBCA doesn't detract from that, and in fact it preserves it. The shipping industries did mention to us that some of the other statutes could have a similar provision, and accordingly, there are four government motions to add similar language to other bills to ensure the Marine Liability Act does apply.

I would turn it over to the Department of Justice to deal with the more constitutional and charter issues.

[Renée Caron]

In relation to the issue of consultation, Environment Canada proceeded with the usual practice through the development of Bill C-16, and that included the protection of cabinet confidence. During the development of the bill, Environment Canada did consult internally with other affected government departments, including extensive consultations with Transport Canada. These consultations with Transport Canada were at both formal and informal working levels, and these definitely informed the development of the bill.

Also per the usual process, the provisions of the bill were fully vetted by the Department of Justice all the way through the bill's development to ensure that it was consistent with the charter and with the Constitution.

The day after the bill was tabled, on March 5, Environment Canada did send out a notice to a long list of stakeholders affected by the bill, covering many different industries. This included several in the shipping industry, notably the Shipping Federation of Canada, the Canadian Shipowners Association, and the Canadian Maritime Law Association. We opened the lines of communication with stakeholders as soon as possible after the bill was tabled. Representatives of the shipping industry did provide valuable input during the process following the March 5 notice that was sent, and the government wishes to address a number of unintended errors in the bill that were identified. Accordingly, eight draft government motions, which relate to the shipping industry's concerns, have been brought forward, and we look forward to continuing the dialogue with the shipping industry as we hope to move forward with the implementation of Bill C-16.

[Mark Warawa, Conservative, Langley, BC]

Thank you. I just want to again make the point that due diligence provisions currently exist in CEPA.

During the 2005 interventions the witnesses have been consistent in their position that they believe they were non-constitutional, but they are indeed constitutional. The other point I wanted to make is that BillC-16 deals with nine different statutes, not just shipping. The effects will not be just on shipping, but right across Canada there will be a higher degree of environmental enforcement. I'm just commenting on Mr. Boucher's concerns that his children maybe shouldn't be in seafaring, or Mr. Lahay, that these statutes are Canada-wide, not just shipping. It sounds to me that shipping wants to be exempt, but the rest of Canada will have to deal with these tougher regulations and tougher enforcements.

I believe we need to have consistency right across our country, including shipping. We do not look at the worst-case scenario, because the worst-case scenario does not apply, or rarely. We need to have good environmental enforcement.

The few minutes that I have left I'd like to pass on to Mr. Woodworth.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

With respect to strict liability, the Supreme Court rendered a decision in the Wholesale Travel Group Inc. case. It clearly ruled that the availability of imprisonment did not alter the conclusion that strict liability does not violate the Charter.

I would therefore like to know whether, in your opinion, this Supreme Court decision should be taken into consideration as part of our discussion on Bill C-16.

[Kaity Arsoniadis Stein]

Why don't I start here? I can tell you that right now the international community is watching the Bill C-16 developments very closely. Right now, our global economy is really suffering. Canada has fared pretty well. Our banks are doing better than most banks globally and have an excellent track record, so there is a revived interest in Canada for investment.

Internationally, on the concerns with what Bill C-15 did, a lot of companies, blue-chip, great companies that are currently here, did risk assessments to see whether they should remain in Canada or do they owe it to their employees and shareholders to go to a less hostile environment? We did see downsizing, and we do know directly of two companies that were waiting to hear what would have happened with the result of Bill C-15. When Bill C-15 became law, these two companies went to Singapore. That's a fact, and we've heard of others.

The international shipping community is a small community and the links are tremendous. For example, the chair of ISAC is also the vice-chair at the International Chamber of Shipping. He's the vice-chair of the London Club, one of the largest P and I clubs in the world. He works with the Magsaysay Group. It is his company. They employ the biggest chunk of world seafarers globally. The connections go on and on. It's a small community.

One of our trading partners for Canada is Asia, and I can read here the Asian Shipowners' Forum joint statement: “The meeting was attended by 119 delegates from the Shipowner Associations of Australia, China, Chinese Taipei, Hong Kong, Japan, Korea...”. At page 12, they highlight the Canadian Migratory Birds Act. I'll read from the statement: “The Forum noted the amendments to the Canadian Migratory Birds Act (1999) made by the adoption of Bill C-15 and continues to support the concerns expressed by the Canadian shipowners.”

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If I could go back to your point regarding the Marine Liability Act, as I understand it, you're concerned that some of the provisions in Bill C-16 regarding compensation or cleanup orders may conflict with international conventions. Is that a correct statement of your concern?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chairman, now is not the time to extrapolate. It is important that we focus on Bill C-16, and, although Mr. Woodworth is asking some very relevant questions, with all due respect to him, they do go beyond the scope of our study pertaining to this bill.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Okay.

I want to understand further the concern with respect to the civil test of balance of probability being applied, as opposed to the higher, criminal “beyond a reasonable doubt” test. Given that this particular aspect of Bill C-16—and this is where Mr. Woodworth was going—is restricted only to the administrative monetary penalty component of the act, I want to ask you to clarify, if you would, why you think this would affect the burden of proof in the prosecution of offences, given that this test only applies to the AMP component.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Other than the enforcement provisions, which are being strengthened through the proposed legislation and amendments through Bill C-16, is there anything the industry could do to bring an added level of comfort to anybody sitting around this table that they're taking matters into their own hands to make sure this problem doesn't exist, so the enforcement route doesn't have to be used?

[David McGuinty, Liberal, Ottawa South, ON]

I'm not asking for blame. I'm just trying to get a sense of how it is that we are in the eleventh hour, just before going clause-by-clause, and you're raising fundamental problems here with the legal regime inherent in this bill. You're telling us we don't know what will take precedence: domestic law, as through the amendments of Bill C-16, or international conventions?

I'm trying to find out why this even got here without Justice Canada and the largest law firm in the country having solved these problems before this arrived. We've heard from Ms. Arsoniadis Stein that there are measures here that fall outside the ambit even of international comparisons, that other domestic regimes don't have similar measures, that this is going to have a serious net impact on investment in shipping in this country. We're then hearing from you that this is a mismatch of different attempts to cobble something together under tough environmental laws. I'm not sure what the theme is. We're now finding out before going to clause-by-clause next Tuesday that, in fact, it's incoherent.

What has to be done to correct the bill?

[Kaity Arsoniadis Stein]

I will ask Peter Lahay, from the ITWF, to give the full history, because he was involved during the Bill C-15 days and is currently involved in Bill C-16.

[Christopher Giaschi, As an Individual]

Thank you very much, Mr. Chairman.

I am a maritime lawyer. I am the west coast vice-president of the Canadian Maritime Law Association. The Canadian Maritime Law Association was established in 1951. We are an organization composed of both individual and constituent members. Most of our individual members are maritime lawyers who practise across the country. Our constituent members come from all facets of the Canadian marine industry.

The CMLA is Canada's representative to the Comité Maritime International, an organization that was established in 1897 and that is primarily concerned with international maritime law and the uniformity of maritime laws, not just through conventions but through various national associations such as the Canadian Maritime Law Association.

The primarily objective and interest of the Canadian Maritime Law Association is the establishment of effective and modern maritime laws and, in an international context, uniformity of those maritime laws, which we have come to know is absolutely essential when you're dealing with ships that move from place to place.

One of the things we are not is a lobby group for any particular maritime interest at all. We represent all maritime interests, and most of our lawyers have acted for all interests on both sides of the fence, as we say, both for and against ships. So we're not a lobby group; we're a broad-based group that's primarily interested in effective and modern law.

We have submitted a submission that I presume you all will have had. There are a few provisions of Bill C-16 that concern us, and those are the main points, the highlights, proposed paragraph 291(1 )(k) of CEPA and 16(1)(d) of the Migratory Birds Convention Act. These are the provisions that empower a court to order an offender to pay any person for the cost of cleanup, etc., following a pollution incident.

And in proposed section 274 of CEPA and proposed section 13.07 of the Migratory Birds Convention Act, there's a provision that provides for compensation for a new phrase, “non-use value”. We're particularly concerned about what that is.

The other provisions we're concerned about are proposed section 13.15 of the Migratory Birds Convention Act and proposed section 9 of the new Environmental Violations Administrative Monetary Penalties Act, establishing various levels of criminal liability for the master and the chief. Some of the my friends here today have expounded upon some of those concerns.

Our primary concern with respect to these various provisions is that they tend to violate or are inconsistent with current international conventions and current Canadian legislation in relation to marine pollution. The more important conventions are, first of all, UNCLOS, which was mentioned earlier. That's the United Nations Convention on the Law of the Sea. Article 230 of that convention--I'm not going to read the complete article to you--starts out: “Monetary penalties only may be imposed with respect to violations of national laws”. And this is in relation to pollution, monetary penalties only. It seems pretty clear that imprisonment should not be an option when you're dealing with something that comes under UNCLOS. It also provides in sub-article (3) of article 230:

In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed.

Of course, recognized rights aren't defined there, but certainly in common law jurisdictions and also in civil law jurisdictions there are some basic rights afforded to any accused, one of which is the presumption of innocence, which I know the international shipowners have spoken on today, and they provided a number of briefs to you on that precise point. However, it is also arguably in violation of UNCLOS.

The CLC convention, which is an international convention related to oil pollution incidents and oil pollution damage, provides in article III:

4. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention.

That specifically says that claims against the owner must be made in accordance with the convention. The next sentence says that the servants or agents of the owners, or members of the crew, are immune from any such claim. Keeping in mind that Bill C-16 empowers awards to be made against the owner and against the crew in sentencing, it's arguably in violation of the CLC.

Similarly, section 51 of the Marine Liability Act, which basically imports the CLC-type concepts into Canadian national law, provides that a shipowner shall be liable for the costs of the reasonable measures of cleanup actually undertaken. “Actually undertaken or to be undertaken” is the wording in the statute, which again would not provide for a non-use value type of award, which the new act is allowing for. That's not actually undertaken. That's something that's pulled out of the air.

Both the CLC convention and the Marine Liability Act provide for limitations of liabilities to shipowners and servants and agents in respect of oil pollution damage claims. In fact, Canada has a very sophisticated regime for compensating for pollution claims. It has multiple layers. Within Canada there is the ship-source oil pollution fund. Then there are the various fund conventions and the supplementary fund, which, in Bill C-7, we're just about to implement in Canada.

The current Bill C-16 doesn't take into account limitation of liability at all, and clearly it needs to. Essentially the problem is that in Bill C-16 we're disguising civil liability and civil compensation in quasi-criminal provisions, which is not fair and is not the right way to go. We're trying to do indirectly what we can't do directly.

Finally, I will say that we endorse the concerns that have been expressed about reverse onus, the test of the balance of probabilities, and the presumption of innocence. We have made a recommendation in our brief about at least one clause that can be put into the various pieces of legislation to ensure that international conventions that Canada has signed will have precedence whenever there is any conflict with any of these pieces of legislation.

Thank you very much.

[Kaity Arsoniadis Stein, President and Secretary-General, International Ship-Owners Alliance of Canada Inc.]

I am very pleased to be appearing before you. I would like to thank the committee for taking the time to listen to us. I would also like to thank Mr. Radford for organizing this meeting.

My name is Kaity Arsoniadis Stein and I am the president and secretary general of the International Ship-Owners Alliance of Canada. Our group represents approximately 400 vessels, locally and internationally, managed out of Vancouver, including bulk carriers, tankers, and containers, as well as tug operators and BC Ferries, one of the largest ferry operators in the world. Teekay, which is one of our founding members, transports more than 10% of the world's seaborne oil.

I'm also here today on behalf of the Council of Marine Carriers, an association operating Canadian tugs and barges, covering the entire west coast of North America and the Arctic, and the Canadian Shipowners Association, which represents vessels trading in the Great Lakes and the St. Lawrence, with an annual trade volume of over $18 billion.

The board of directors of the Vancouver Maritime Arbitrators Association lends its full support, as well as international shipping associations, whose letters have been submitted in our brief—the International Chamber of Shipping, Intertanko, Intercargo, Hong Kong Shipowners Association, and our global partner, BIMCO.

We fully support the objective of strengthening Canada's environmental laws and making sure those laws are enforced. Our concern is that the reverse onus situation brought about by former Bill C-15 of the 38th Parliament has not been corrected by Bill C-16.It has instead created a greater problem, since the possibility of strict liability fines of $6 million will be made available on a per-day basis. With the aggravated clause, it is $12 million available on a per-day basis.

Bill C-15 has removed the traditional legal concept of the presumption of innocence, thus breaching our constitutional guarantees of section 11 of our charter. The leading case on this issue is Wholesale Travel Group, 1991, where our Chief Justice Beverley McLachlin, currently the only remaining justice who served on this, stated that “...the penalty of imprisonment cannot, without violating the guarantees in the Charter, be combined with an offence which permits conviction without fault or because the accused has failed to prove that he or she is innocent...”.

It is important that we do not lose sight of fundamental principles of law. There are serious flaws associated with the loss of the presumption of innocence. One is that they breach international principles that are codified in the IMO convention and UNCLOS, to which Canada is party. MARPOL 73/78 makes a fundamental distinction between accidental and intentional pollution. The UN Convention on the Law of the Sea supports MARPOL and points to monetary penalties rather than imprisonment being the normal sanction. They provide serious criminal sanctions against almost everyone involved in the shipping operation without regard to whether the incident was accidental.

The development of these measures has had a negative effect on Canadian credibility in terms of our status as an important trading nation. These measures have, without a doubt, dissuaded business investment in Canada. Not a single shipping company that we are aware of has set up in Canada since the passing of Bill C-15.

Our government has invested $2.5 billion into the Pacific gateway and is working on a comprehensive package to stimulate the Canadian economy. If Canada, an export nation rich in resources, plans to retain and expand its current industry, our laws must be amended to provide confidence and security. Any blue chip company involved in transport that has located itself in Canada for a number of excellent reasons must now weigh these reasons against the risk of exposure to its directors, officers, and employees, and seriously consider relocating to less hostile jurisdictions.

You have letters of concern from the international community. Since the passing of Bill C-15, Canada has been blacklisted as an unfavourable jurisdiction to do marine business. It is publicized widely that Canada must amend Bill C-15 through Lloyd's List, P and I club circulars, and annual statements, and the international community is watching the progress of Bill C-16 very closely.

The international community is watching the progress of Bill C-16 very closely. I'll take a moment to read two excerpts.

One is from the International Chamber of Shipping, the ITF, and the Oil Companies International Marine Forum. It is a joint statement, a collective statement, and it is in the brief:

The introduction of the “due diligence” requirement in the case of accidental or non-intentional pollution is...problematic. We acknowledge that an accused person or vessel will not be found guilty if they can show that they exercised due diligence.... However, it is unreasonable, particularly in the case of accidental pollution, to apply strict criminal liability thereby placing the burden of proof on the accused to rebut an automatic assumption of guilt. Such an automatic assumption of guilt, where imprisonment is possible, raises significant human rights concerns.

I'll also read from Intertanko's support statement:

Bill C-15 seeks to introduce a strict liability offence for acts of pollution by individuals including a vessel’s master, officers as well as the vessel’s owner’s directors or officers. The prosecution is not required to prove the accused’s intent to commit the offence. We are very concerned that such provisions will, in effect, criminalize accidental or non-intentional pollution, and will seriously prejudice the master’s or crew’s action during a potential incident. While we recognize that an accused person is able to escape conviction provided he or she has proved that all reasonable steps were taken to prevent the pollution, the accused person is considered guilty and must prove his or her innocence, rather than vice versa.

The shipping industry has been requesting an amendment for the past four years and has worked very closely with Environment Canada and Transport Canada. While we fully support measures to protect the marine environment, we also seek to ensure that regulations are balanced, safeguard our crews, and do not prejudice the safe operation of vessels. We support the efforts in environmental legislation to minimize pollution and make polluters pay. These efforts should not, however, imperil individual liberty. Every individual has the right, in a modern democratic society, to the presumption of innocence. No one should be imprisoned without proof of commission of an offence and due process.

We have retained numerous lawyers to check this point for us to ensure that we're not in error. I will read from one of our statements. It's a joint legal opinion again, and it is in the brief:

It is entirely incongruous with the principles that should guide free and democratic societies, which purport to guarantee the presumption of innocence, to sweep away those constitutional rights for those who face imprisonment for infractions which involve a lack of diligence.

Finally, we have had consultations with Sarah Cosgrove and have met with some MPs from this committee. Given their concerns, we have reconsidered our previous submission and now suggest the clause that follows, which we believe preserves the fundamental objectives of Bill C-16 yet also addresses our concerns and those of the international community.

We therefore recommend that every act amended by Bill C-16 include a clause in the following terms:

Notwithstanding anything to the contrary in this act, where imprisonment is sought as a penalty, every accused shall be presumed innocent of the offence charged and shall at a minimum be entitled to a defence of due diligence.

Thank you for this opportunity to make our views known. I hope that we will find a solution that satisfies everyone.

[Mark Boucher, National President, Canadian Merchant Service Guild, International Transport Workers' Federation]

Thank you very much.

I'm Mark Boucher. I'm the president of the Canadian Merchant Service Guild, a professional association of 5,000 Canadian ships officers. The guild is an affiliate of the International Transport Workers' Federation, or ITF, representing over 600,000 members in all sectors of transportation. The ITF works to improve conditions of seafarers of all nationalities and promotes regulation of the shipping industry to protect the interest of seafarers. While the guild represents primarily licensed officers and senior crew members and marine pilots in Canada, the ITF represents almost all categories of the 15,000 seafarers on the ships in Canada's domestic industry.

The guild did send in its own written submission, but I'm comfortable to speak on behalf of the entire ITF caucus, because the guild is saying the same things as the ITF is saying. We take a very special interest in legislative matters affecting all Canadian seafarers.

I know you had to make a decision on short notice regarding whether to hear from us today, and we certainly appreciate the opportunity to be able to speak to you on this matter.

I want to say from the outset that seafarers are on the front lines of pollution prevention, and the Canadian seafarers, in particular, have a very good track record. Both seafarers and their representatives are in favour of having effective laws concerning environmental protection, and we recognize and support Canadian society's strong disapproval of environmental offences.

Bill C-16 amends a number of pieces of legislation affecting seafarers, including the Migratory Birds Convention Act and the Canadian Environmental Protection Act. These were also the principal pieces of legislation that were amended in 2005 by Bill C-15. A disappointment that is common to both Bill C-15 and now Bill C-16 is that it was very late in the game when we became aware of this piece of legislation. The guild and the ITF are more accustomed to being invited to provide input regarding proposed legislation in the marine transportation field, where we have been working closely with Transport Canada, and where consultation is held in an early and meaningful manner with a broad cross-section of groups, regarding important pieces of legislation such as the Canada Shipping Act. For many years we have contributed valuable input to transportation legislation in this manner, and that has provided us an opportunity to have a clear understanding and a certain comfort factor with a number of controversial proposed legislative changes. However, it was only yesterday that the guild and the ITF were given any opportunity to be briefed on Bill C-16 by government officials and to ask questions and provide comments.

It's more important, though, that I point out that the marine industry is having tremendous difficulty recruiting Canadian seafarers. This is a worldwide problem in the seafaring industry everywhere, and the key point today that I wanted to make. The average age of the seafaring workforce in Canada is very high, and we are trying to address this chronic shortage of seafarers right now by doing everything we can to recruit young people into the industry.

The guild and the ITF have a number of promising HR initiatives under way in cooperation with several other organizations, and we're making some progress on the quality of life ingredients for seafarers, but more progress needs to be made.

We need to ensure that effective training schemes are in place for entry-level positions and for career development and progression to senior levels, aboard ships as well as in pilotage. The entry-level positions and then the junior officer positions are the feeder groups for senior-level positions, not just on ships but in pilotage work and for certain shore positions in industry as well as in the regulatory field and government.

One of the things that are bound to affect the recruiting efforts that are under way and that scare off potential candidates is this type of legislation. Bill C-15 didn't help this situation, and it is not being corrected now. In our view, we see the problem being taken up another notch. What we see Bill C-16 doing is communicating to potential candidates in the marine industry that if you are a seafarer, you might get caught up in this, and you might be fined huge amounts of money and spend a fortune trying to defend yourself. These are very negative things when we are trying to attract new people into the marine industry. Canada needs a strong marine industry. We need to be able to attract a new generation of seafarers and do everything we can to make it fair for them and not have them treated unfairly.

We feel that this bill is unfair. One of the things it is proposing to do is reduce the crown's job by making it easier to get a conviction. We see this as a serious disincentive and a threat to having a strong domestic seafaring industry, which is important to Canada. Whether we foster it in legislation or not, Canada is a maritime nation, and the marine shipping that's going on right now across the country is vital. We need to build the marine industry, and that won't happen if seafarers here are treated unfairly, making it even more difficult to recruit a new generation of seafarers.

There has been a lot of recent discussion stressing the need for increases in enforcement. The first point I want to raise concerning this bill is with regard to proposed subsection 20(2) of the Environmental Violations Administrative Monetary Penalties Act, under Bill C-16, which, on page 186, states that:

The Minister has the burden of establishing, on a balance of probabilities, that the person, ship or vessel committed the violation.

This is reducing the onus of proof on the crown, which would be found in a penal case where it is beyond a reasonable doubt, to the lower civil test of a balance of probabilities, which, as we understand it, means that if those hearing the case decide it is more likely than not that you committed the offence, then they have to convict, and they don't have to be concerned with reasonable doubts.

Our view is that in this atmosphere of an appetite for increased enforcement, which we wholeheartedly support, this proposed threshold of proof is too low. While this does simplify prosecutions for the crown, it is not affording proper rights to the accused ship's crew members, and we are concerned this will facilitate convictions.

Our second point concerns proposed section 13.15 of the Migratory Birds Convention Act, as amended by clause 102 of Bill C-16, which on page 145 states that:

In a prosecution of a master or chief engineer...it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified...

The existing legislation now specifies in old subsection 13(1.6) that vicarious responsibility does not apply to masters and chief engineers. Bill C-16 proposes the opposite, and I'll talk more about that in a second. Not only that, but in proposed subsection 280(2) of the Canadian Environmental Protection Act, as amended by clause 73 of Bill C-16 on page 93, there's a change to indicate that:

...if the master or chief engineer...authorized...or participated in the offence, the master and chief engineer are a party to and guilty of the offence, and are liable....

We don't see why that was changed, because the only word that was changed was the word “are”, which indicates both of them and not just the one who may have committed the offence. Whereas before it said “the master or chief...as the case may be, is a party to the offence”, now it is proposing to say “the master and the chief engineer are party to the offence”. That change makes them both liable if either one of them does something that is unreasonable.

Obtaining the qualifications required for these senior levels of officer certifications takes many years, and it's at these senior levels that the shortage of qualified, licensed personnel is the most serious. Many of the officers at this level are fully eligible to retire right now. Increasing the criminalization of seafarers will drive them away. If that happens and the ship won't move, whatever important work the ship was doing will grind to a halt because they will have three-quarters of a crew but can't sail anywhere without key individuals. We need to do everything possible to reassure seafarers that they will be treated in a fair manner.

To sum up, we've already submitted a letter to the committee covering these same items that I've described.

We propose the removal of the new automatic vicarious liability of the master and the chief engineer that's found in proposed section 13.15 of the Migratory Birds Convention Act as amended by clause 102 of Bill C-16 on page 145.

Second, we pointed out that the revision that is proposed by clause 73 of Bill C-16, on page 93 in proposed subsection 280(2) of the Canadian Environmental Protection Act, refers to both of the seafarers in the positions of chief and master, instead of one or the other, as the case may be. We're proposing that this amendment be deleted as well.

We proposed the removal of the unacceptable reduced onus of proof that is found in proposed section 9 of the enforcement measures of the new Environmental Violations Administrative Monetary Penalties Act as enacted under clause 126 on page 186 of Bill C-16.

I've explained that we need to have a level playing field, especially since we already are having such difficulties recruiting. Despite the work that is going on, there's already too much negative publicity and too many disincentives for young people to enter the marine industry. There are already enforcement mechanisms that are effective without having to increase the criminalization of seafarers. The seafarers are employees working day to day for employers. The seafarers see themselves as the ones who would be getting hit with fines and jail terms. The employers are not going to go to jail for them, and they're not going to pay their fines for them. The pool of candidates who are willing to take that risk by becoming seafarers is decreasing.

I want to thank the committee for giving me an opportunity to present our input and comments on this important piece of legislation, and I hope the views we sent in by letter a few days ago will be given consideration.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Welcome, everyone, to the 17th meeting of the Standing Committee on Environment and Sustainable Development. Today is our last meeting with witnesses on the subject of Bill C-16, an Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment.

Our witnesses today are from the marine industry. I thank you for being here today. I know some of you came from far away, as far away as British Columbia. You're representing essentially three groups, the Canadian Maritime Law Association, the International Ship-Owners Alliance of Canada Inc., and the International Transport Workers' Federation. The way we will proceed is that each group will be given eight minutes to present, and that will be followed by rounds of questioning.

Would you, Mr. Boucher, like to go first today?

Mr. Boucher, welcome. We look forward to hearing what you have to tell us.