Mr. Chair, there is never certainty in law, unfortunately. So it's a range of arguments, reasonable arguments on both sides of any issue, which is why ultimately we need judges to decide them. But in approaching the issues, we tend to look at, obviously, the leading authorities and all the lower court jurisprudence interpreting and applying those authorities. In the case of due diligence as a standard of liability in the regulatory context, the lower courts in almost any context are almost universal in accepting the constitutionality of the reverse onus provisions imposed across the board by every provincial and territorial legislature in the regulatory context.
Sometimes under the section 1 analysis, which is the Oakes test, which is the burden the government has to meet in demonstrating that it's justified in limiting a charter right or freedom in a particular context.... In some cases that analysis is much more particularized than in others, and sometimes general conclusions can apply quite broadly, and it doesn't depend so much on the context.
With respect to the due diligence defence, what the courts have almost without exception recognized consistently since 1991 is that when the object of the legislation is to require the participants in a particular sector of the economy or society to meet a reasonable standard of care, those objects are best met when we impose on those participants the reverse onus due diligence defence, because in order to be able to meet that in a situation where there is an accident, they're going to have to be able to show that they've put in place systems and procedures that are, within their knowledge, best to know whether they have done it, that demonstrate that they've taken reasonable measures to avoid whatever the prohibited act might be, in this case pollution in the oceans or in waters.