Evidence of meeting #18 for Environment and Sustainable Development in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
9:20 a.m.
Executive Director, Legislative Governance, Department of the Environment
Would you like me, Mr. Chairman, to take questions on the issue of consultation or just move to the next point?
9:20 a.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Do you want to follow up? We're not proceeding the way we normally do. Normally we would have started with a presentation from the witnesses, answering the points that we raised, and then we would have gone to questions, but now we're sort of moving in two directions at once.
Would the members like the witnesses to continue and say what they have to say, and then we'll get back to Mr. McGuinty?
9:20 a.m.
Some hon. members
Agreed.
9:20 a.m.
The Chair
Maybe that's the best thing, then.
9:25 a.m.
Executive Director, Legislative Governance, Department of the Environment
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.
9:30 a.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Do we figure we need another five minutes from the witnesses before we move to questions? What do you think, Mr. MacCallum?
9:30 a.m.
Raymond MacCallum Senior Counsel, Human Rights Law Section, Department of Justice
I can make a quick summation of the relevant legal issues in about five minutes, if that's what the committee wants.
9:30 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
A summation is helpful, but proposed answers are even more helpful. I think we can get a summation of the legal issues; we can all distill back from the last set of witnesses. What we're looking for is how you propose we proceed to deal with the illegal issues that have been raised, in your answer, in your five minutes, if you could.
9:30 a.m.
Senior Counsel, Human Rights Law Section, Department of Justice
I think my answer, Mr. Chair, will hopefully allay some of the concerns that committee members may have. I think there has been incomplete information provided to the committee so far on the nature of the legal questions raised by a strict reliability approach to regulatory offences. A lot has been made, and appropriately so, of the Supreme Court's decision in 1991 in Regina v. Wholesale Travel Group, which was the first time the court considered a strict liability offence under the rubric of the charter. It was a close 5 to 4 decision, as has been mentioned before.
I think what's important for the committee to know is that that decision was then affirmed three times subsequently by a unanimous Supreme Court in very cursory fashion. Regina. v. Wholesale Travel Group dealt with an offence of false and misleading advertising under the Competition Act. In three subsequent cases that the Supreme Court dealt with on the basis of Regina v. Wholesale Travel Group in upholding and applying its general reasoning, which is that strict liability offences that involve the imposition of an onus on the accused to prove that he or she acted duly diligent were justifiable under the charter, the court very summarily upheld that result.
One of those decisions dealt with a provision very similar to what was at issue in Wholesale Travel Group, and that was under the Food and Drugs Act in the case of Regina v. Rube in 1992. It dealt with false and misleading sale of food.
The next case they dealt with was Regina v. Ellis-Don Limited and Rocco Morra, which involved charges against both Ellis-Don as a corporation and one of its employees. That was a charge under Ontario's Occupational Health and Safety Act about maintaining an unsafe workplace. It was a very different context; nonetheless, they very summarily applied the conclusion they had reached in Regina v. Wholesale Travel Group, that it was consistent with the charter to impose liability on the basis of a reverse onus due diligence offence, a strict liability offence.
Finally, in Regina v. Martin, they dealt with a charge under the Export and Import Permits Act, and the offence was the export of goods that were contained on the export control list. Again, it was a very different context, but the court very cursorily and summarily said that in light of our reasoning in Regina v. Wholesale Travel Group, taking a strict liability approach to that offence and the enforcement of the Export and Import Permits Act was consistent with section 1 of the charter.
In each of these three subsequent decisions, the only thing the court focused on was the general holding reached in Regina v. Wholesale Travel Group, that the approach of strict liability was constitutional in the context of a regulatory regime, in the context of legislation whose ultimate purpose was the imposition of standards for those subject to its rules to have to meet and the requirement that they be able to show that they have met them in situations in which infractions have occurred, whether it's oil pollution, an injury on a work site, or exporting as a business contrary to the rules that apply to the export of controlled goods, which are goods in which Canada has a security or national security interest. So they focused on the nature of the legislation broadly as being regulatory legislation rather than true crimes, and with a public welfare orientation, and the need to encourage people who participate in that industry to abide by certain legislated norms.
I think it's necessary to appreciate that despite the complex division in Regina v. Wholesale Travel Group in which there was a comprehensive explanation of the principles, in the subsequent decisions the court generally accepted that this is an appropriate approach for legislatures to take in imposing liability for the breach of regulated norms in complicated areas of society and economic life.
Having said that, I'm not sure whether there's more information the committee would like that I should leave for questioning. I will note that these issues were raised in 2005, and in the intervening four years, nothing in terms of the legal landscape has changed to call into question the validity of taking this kind of approach, the imposition of penal liability in a regulatory context.
9:35 a.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Thank you, Mr. MacCallum.
Since none of the other witnesses have anything to add, I gather, why don't we more or less start over with questioning from Mr. McGuinty.
Go ahead, Mr. McGuinty.
9:35 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Ms. Caron, why did the shipowners come here and say that they weren't consulted?
9:35 a.m.
Executive Director, Legislative Governance, Department of the Environment
It is my understanding that we did not contact every shipping organization on March 5. Unfortunately, some shipping organizations didn't find out through the March 5 notice. That is certainly regrettable.
In any event, I understand that they did follow up quickly, and they were put in touch with Ms. Cosgrove very soon after the bill was tabled.
9:35 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Were the witnesses who came here in the last meeting consulted?
9:35 a.m.
Executive Director, Legislative Governance, Department of the Environment
We were in touch with the International Ship-Owners Alliance of Canada. Ms. Kaity Stein was here last week. We did contact the Canadian Maritime Law Association on March 5.
In relation to the other witnesses, I'll turn it over to Ms. Cosgrove.
May 5th, 2009 / 9:40 a.m.
Sarah Cosgrove Manager, Legislative Advice Section, Department of the Environment
We also were in touch with the Shipping Federation of Canada. We received contact from them and had conversations after the tabling of the bill.
The remainder of the organizations we learned of through their briefs to the committee.
9:40 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
I don't want to make a big thing of this, but I want to get the chronology right.
So they were consulted long after the bill was tabled.
9:40 a.m.
Executive Director, Legislative Governance, Department of the Environment
Long after the bill was tabled? Just a day after the bill was tabled.
9:40 a.m.
Liberal
9:40 a.m.
Executive Director, Legislative Governance, Department of the Environment
No, that's right, Mr. Chairman. The bill was developed following the usual process. Cabinet confidence was applied in the development of the bill.
9:40 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
So the day after the bill was tabled, they were approached. Great. Thank you.
Mr. MacCallum, you lost me after you said “incomplete information” was supplied. You'll forgive me; I used to be a lawyer, but I'm not a lawyer anymore. There are really good lawyers around this table and I'm not one of them.
I'd like to understand: if the folks who were here last week had heard you speak, would they be in agreement with you?
9:40 a.m.
Senior Counsel, Human Rights Law Section, Department of Justice
One of the key pieces of legal advice that they rely on, I understand, is the advice provided to one of the industry groups previously--on Bill C-15 in 2005--by Alan Gold, the eminent defence counsel in Canada. Alan Gold acknowledges in his opinion that the courts across this country, and lawyers generally, accept the position that I articulated, that it is consistent with the charter to rely on reverse onus due diligence as the approach to imposing penal liability in the regulatory context.
So whether or not the individuals who were actually here would agree with that result, the lawyer who advised them certainly acknowledged that, and took, in my view, an academic approach to saying, well, despite the fact that this may be true, arguments can be marshalled that this approach is not constitutional.
I don't want to speculate too much, but they may have had incomplete information themselves, or as lay people, they may not have appreciated sometimes the nuances that we lawyers tend to inject into our legal opinions. But there's a difference between arguments that can be marshalled that this is unconstitutional and a conclusion or a statement of fact that this is unconstitutional.
9:40 a.m.
Liberal
David McGuinty Liberal Ottawa South, ON
So with regard to the concerns raised by the Maritime Law Association representative about, for example, potential conflicts here between domestic legal changes contemplated in this bill and international obligations that we've undertaken through a number of international treaties, there is no conflict?
9:40 a.m.
Senior Counsel, Human Rights Law Section, Department of Justice
I apologize, but I am actually not competent to speak to that. I advise exclusively on the Charter of Rights and Freedoms, and it would be other Department of Justice officials who would have to explain that issue to you.
9:40 a.m.
Liberal